Law Office of R. Jeff Busch

The outbreak and spread of the Corona Virus is heartbreaking on so many levels. Lives are being lost on a daily basis. Jobs are being affected. Sadly I fear many businesses will never re-open. For those that are able to stay open, life will never be the same. As many of you know I have been a licensed California attorney since June 1986, about four months before Robby was born. The favorite part of my work is helping individuals and families, traditional and non-traditiona...l alike, create a plan for what will happen upon their incapacity or death. I also assist individuals and families with probate, which is what often happens when a plan was not put in place by a licensed attorney experienced in estate planning. This is not an area where you should go cheap. Have it done correctly. My practice is up and running. If you or someone you care about has questions about estate planning, please have them call me. I do not charge for the initial estate planning audit, where we determine exactly what they do and do not need. We can speak by telephone, or FaceTime, or Zoom. However you or your friend feel most comfortable. I also make house calls. Please call (916)859-0370 and let's talk.

Earlier this morning the court approved the petition to close a probate case. I very much appreciate my client and the opportunity she gave me to assist her with her legal matter. The sad thing is this probate could have been avoided completely. My client's husband, now deceased, had a trust created while they were in a relationship but prior to their marriage. The trust gave everything to my client. The home. The car. Everything. At the time the trust was executed th...e settlor signed a deed transferring his home to the trust. So far so good. Fast forward a bit and the settlor decides to refinance the mortgage. As is often the case, the mortgage company and/or title company required the real property to be transferred out of the trust before the funding. Again, so far so good. Fast forward some more...settlor dies...without the home being transferred back to the trust. Had there been a Schedule A in the trust identifying the settlor's home my client could have filed a petition with the court and the real property could have been, and would have been placed back into the trust. There would have been an expense, but much less costly and much less time consuming than a full probate. Alas, there was no Schedule A. No partial Schedule A. No uncompleted Schedule A . Nothing. Nada. When my client argued to the court the settlor's act of transferring the real property to the trust was evidence of his intention that the real property be a trust asset, the judge rejected her argument, ruling that absent a Schedule A, or some other document showing his intention that the real property was to be placed back in the trust, she would have to probate the estate. If you have a trust now, please check to make sure (1) there is a Schedule A and (2) the Schedule A is complete. If you own real property, make sure it has been transferred to the trust unless you have a specific reason to not do so. If you own real property and do not have a trust yet, please speak with an experienced licensed California attorney so your spouse, children or other beneficiaries do not have to deal with the probate court.

The outbreak and spread of the Corona Virus is heartbreaking on so many levels. Lives are being lost on a daily basis. Jobs are being affected. Sadly I fear many businesses will never re-open. For those that are able to stay open, life will never be the same. As many of you know I have been a licensed California attorney since June 1986, about four months before Robby was born. The favorite part of my work is helping individuals and families, traditional and non-traditiona...l alike, create a plan for what will happen upon their incapacity or death. I also assist individuals and families with probate, which is what often happens when a plan was not put in place by a licensed attorney experienced in estate planning. This is not an area where you should go cheap. Have it done correctly. My practice is up and running. If you or someone you care about has questions about estate planning, please have them call me. I do not charge for the initial estate planning audit, where we determine exactly what they do and do not need. We can speak by telephone, or FaceTime, or Zoom. However you or your friend feel most comfortable. I also make house calls. Please call (916)859-0370 and let's talk.

What is an Epstein credit? California is a community property state, one of nine. In its simplest application, absent an enforceable written agreement, property acquired during a marriage is owned equally by the parties. The flip side is that, with some important exceptions, debts incurred during the marriage are owed equally by the parties. This is how Epstein credits work. Let's suppose on the date of separation Mr. and Ms. Brown (not their real names) owe $1,000.00 on ...their Disney credit card. Absent a written agreement, they each owe half of the debt, or $500.00 each. If Ms. Brown is worried about Mr. Brown making the payments and thereby damaging her credit rating, she may choose to pay off the entire $1,000.00 debt. By doing so she has paid her one-half and his one-half. Since Ms. Brown used her separate property earnings to pay Mr. Brown's share of a community debt, she is entitled to an Epstein credit in the amount of $500.00. But that's not the end of the story...or this post. The granting of Epstein credits is discretionary with the court. In situations were the court determines it would not be fair to award Epstein credits, it can deny the request. However, as I often tell my clients, "It doesn't cost anything to ask.", and "The worse thing the judge will say is "No." So ask.

Earlier this morning the court approved the petition to close a probate case. I very much appreciate my client and the opportunity she gave me to assist her with her legal matter. The sad thing is this probate could have been avoided completely. My client's husband, now deceased, had a trust created while they were in a relationship but prior to their marriage. The trust gave everything to my client. The home. The car. Everything. At the time the trust was executed th...e settlor signed a deed transferring his home to the trust. So far so good. Fast forward a bit and the settlor decides to refinance the mortgage. As is often the case, the mortgage company and/or title company required the real property to be transferred out of the trust before the funding. Again, so far so good. Fast forward some more...settlor dies...without the home being transferred back to the trust. Had there been a Schedule A in the trust identifying the settlor's home my client could have filed a petition with the court and the real property could have been, and would have been placed back into the trust. There would have been an expense, but much less costly and much less time consuming than a full probate. Alas, there was no Schedule A. No partial Schedule A. No uncompleted Schedule A . Nothing. Nada. When my client argued to the court the settlor's act of transferring the real property to the trust was evidence of his intention that the real property be a trust asset, the judge rejected her argument, ruling that absent a Schedule A, or some other document showing his intention that the real property was to be placed back in the trust, she would have to probate the estate. If you have a trust now, please check to make sure (1) there is a Schedule A and (2) the Schedule A is complete. If you own real property, make sure it has been transferred to the trust unless you have a specific reason to not do so. If you own real property and do not have a trust yet, please speak with an experienced licensed California attorney so your spouse, children or other beneficiaries do not have to deal with the probate court.

Beneficiary versus Heir; What’s The Difference? To summarize California Probate Code Section 24, a Beneficiary is someone who receives a gift or distribution through a will or trust. Where there is no will or trust, it also means an heir. California Probate Code Section 44 provides:... Heir means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. Intestacy refers to situations where the decedent did not leave a will or trust.

What is the Certification of Trust? Sometimes referred to as the Abstract of Trust, the Certification of Trust certifies that you have a revocable living trust and is used to inform financial institutions and government agencies (or anyone else that may want proof of the existence of a trust) that the trust is in full force and effect. The Certification of Trust describes the portions of your trust that are relevant to financial institutions and government agencies, specifically the powers granted to the Trustee(s), without disclosing personal or private aspects such as the identification of children, or the specifics of the distribution plan (who gets what). The Certification of Trust is used to fund assets into the trust.

What is an Epstein credit? California is a community property state, one of nine. In its simplest application, absent an enforceable written agreement, property acquired during a marriage is owned equally by the parties. The flip side is that, with some important exceptions, debts incurred during the marriage are owed equally by the parties. This is how Epstein credits work. Let's suppose on the date of separation Mr. and Ms. Brown (not their real names) owe $1,000.00 on ...their Disney credit card. Absent a written agreement, they each owe half of the debt, or $500.00 each. If Ms. Brown is worried about Mr. Brown making the payments and thereby damaging her credit rating, she may choose to pay off the entire $1,000.00 debt. By doing so she has paid her one-half and his one-half. Since Ms. Brown used her separate property earnings to pay Mr. Brown's share of a community debt, she is entitled to an Epstein credit in the amount of $500.00. But that's not the end of the story...or this post. The granting of Epstein credits is discretionary with the court. In situations were the court determines it would not be fair to award Epstein credits, it can deny the request. However, as I often tell my clients, "It doesn't cost anything to ask.", and "The worse thing the judge will say is "No." So ask.

What is a Spousal Property Petition and how can it help a surviving spouse? My client's husband died without having a trust, or will...anything. This was the second marriage for both. He had a home, but the couple decided to make a new start and purchase a home. Wife sold her home and used about $200,000.00 toward the down payment. (Nice, right?:) Title for the new home was taken in both names.... Down the road the couple ran into financial trouble and refinanced. At that time they were told they could get a more favorable loan if wife's name was removed from the title and the loan taken in husband's name alone. This sort of thing happens ALL the time. The refinance was completed, but wife's name was not put back on the deed. Unfortunately this is also something that happens ALL the time. Some people think they are not allowed to add the spouses name back to the title, but that is simply not true. Lots of folks just forget. So husband dies without a trust...and without a will...and the title held in his name only. This is where the Spousal Property Petition rides in to save the day. Since the home was purchased during the marriage it was presumed to be community property. That meant one-half of the home belonged to wife even though her name was not on the title. Under California law, absent a trust or will to the contrary, community property passes to the surviving spouse on the death of the first spouse. The kicker is how to change title on the property. We petitioned the court, recited the above facts, with the appropriate law, and the court granted our petition, ordering that my client owns one hundred percent of that real property. A few additional notes are in order. The lender has pretty much refused to speak with my client because she was not on the title (at the time of death) and the deceased spouse had never authorized the lender to speak with wife or provide her with any information. The take away from this true story? If you have not already done so, please get your trust and/or will (whichever is appropriate for your circumstances) drafted by an experienced attorney...now.

How Bad Is Probate? If you subscribe to a newspaper you have no doubt seen a flyer advertising a Trust Seminar If you own a home, paid for or not, you have probably received letters in the mail, cleverly disguised as official government mail, inviting you and a room full of strangers to hear an attorney try to scare you into buying a living trust. The biggest scares they will throw at you are probate and expense. What is probate? Probate is the court process by which a...Continue reading

My favorite part of my work is my clients. I have met so many wonderful men and women. Many are at the end of life's journey and I enjoy visiting with them as they share fond memories of their lives. My take aways from my conversations with these people? Decide WHAT matters. Decide WHO matters. Forget about the other stuff and take action.

A question asked when drafting the trust is whether or not the settlor(s) [aka client(s)] would like the successor trustee to receive compensation for her or his services. This morning I saw a strong argument for compensating the successor trustee. In the case being argued the successor trustee began acting in his capacity many, many moons ago. The sole beneficiary of the trust was just a little girl at the time, but is now over 25 years of age. Although the trust provide...d for regular accountings by the successor trustee, no one ever asked for one, so none were provided....until now. The beneficiary requested an accounting all the way back to when the successor trustee assumed his responsibilities, 2003. The successor trustee's position is, "I'll be happy to provide an accounting...but only for the last three years, because that is as far back as you can go to sue me for mismanagement of the trust." The court held the beneficiary was entitled to an accounting for the period from when the beneficiary reached 18 years of age through August 31, 2017 and gave the trustee 120 days to provide the information. Three takeaways from this: (1) Acting as a successor trustee can be a lot of work, so think carefully about this when drafting your trust documents; (2) Keep good records: receipts, bank statements, ledgers, everything; and (3) If you are appointed as the successor trustee, be proactive. Do all you are required to do by the trust...and then a little more. You are not in this alone. Most trusts give the successor trustee authority to hire attorneys, accountants and financial planners to assist with the trust administration. See more

While visiting my grandfather's farm many years ago, my Uncle Gerald asked me to go "fetch" my cousin Jerry in the field. (That's how they talk in Idaho.) I asked if I could take the Suzuki. I had been riding my friend Bruce's Honda and figured this shouldn't be any more difficult...except the Honda did not have a clutch...and the Suzuki did. Some of you can already see where this is going. After revving it up and going nowhere, I put it in gear...without using the clutch,... and did a wheelie into the side of Uncle Gerald's blue Lincoln Continental. By no small miracle there was no damage to the car, the Suzuki, or myself. The only thing damaged was my ego. I expected Uncle Gerald to be angry at me, but he wasn't. He quietly said, "Jeff, if you don't know how to do something, please say so." Lesson learned. That brings me to the point of this post. The other day a frazzled woman called my office. Her husband had recently passed away. Someone had suggested she get a trust prepared. After getting some information from her I determined that a trust would be the best way for her to go. However, her children (one son-in-law in particular) told her she did not need a trust. None of the folks giving her advice were attorneys...or paralegals...or had any legal training...at all. It's difficult to kindly tell someone their children don't know what they are talking about, but that is what I had to do. It was important she have accurate information. When I have a question about insurance I call my insurance agent. When I have a medical question I reach out to my doctor. Please, do yourself a favor; if you do not have an up-to-date estate plan in place, one prepared by a licensed and experienced attorney, make an appointment to meet with one to make sure you get accurate advice. Bad advice is worthless. Good advice is priceless.

I recently met with a family who hoped to have a durable power of attorney prepared for their father. I excused the children from the room and asked the gentleman some basic questions to determine his capacity. Unfortunately it became apparent early on this very kind man lacked the capacity to understand or execute a durable power of attorney, or any other legal document. The family now must decide if they want to spend the money for a conservatorship in order to protect the father from others taking advantage of him. If you have not put your affairs in order, please do so now. Depending on your situation a simple will and durable power of attorney may be all you need. The only way to know for sure is to speak with an experienced attorney.

A common question I am asked is, How much stuff do I need before I have to worry about making a will or a trust? The answer to that question is, Not much. A woman reached out to me after her boyfriend died unexpectedly. Neither she or her boyfriend had a home or much else in the way of assets...except a Chevrolet Caprice, which they both loved to work on. Unfortunately the Chevrolet was in boyfriend’s name only, and the boyfriend had not bothered to make a will. I su...ggested the woman reach out to her boyfriend’s parents and ask them to give her the car, since without a will the car would go to the boyfriend’s children if he had any, and if not, to his parents. I did not hear back from the woman, but I hope the boyfriends parents did the right thing. A simple will giving the car to the girlfriend would have made all of this a non-issue.

One of the frustrating parts of contested family law hearings occurs when an individual makes a statement that is not true and there are no consequences. For example, several years ago a dispute arose over which party would have use of the one family vehicle. My client told me the husband’s license was suspended so he would not be able to drive the car legally. The judge asked the husband if that was true and the husband said it was not true. The judge asked the courtroom... deputy to run the husband’s license, he did, and the husband’s license was indeed suspended. The judge gave use of the car to mother, but sadly said nothing to the man regarding his lie to the court. However, this morning I was in court and witnessed a judge who actually takes telling the truth seriously. In this case a woman representing herself had prepared a declaration with the court containing false statements. The judge told the woman he had seen individuals prosecuted for less. Unfortunately I was not able to stay to hear the judge’s decision, but I am pretty confident this woman will not be filing false declarations in the future. The moral of the story? When it comes to presenting declarations with the court, or testifying, honesty really is the best policy. In my experience judges have a great deal of empathy for a lot of things; however, perjury is not one of them.

Many people use their Estate Plan to help support the organizations they love. If you'd like to find out more about Charitable Trusts, please contact my office.