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Elderlaw: 12/01/2015


Dear Readers:

We’re now in the holiday season. The holidays are about family, and when you think about your family you tend to start thinking about mortality. It may be a little weird, but estate planning attorneys tend to have an up-tick in business this time of the year.

If you haven’t done so recently, look at your estate plan if you have one. Sooner or later, you’ll read it and realize that it no longer does what you want.

Maybe you have just had children, and you need to nominate guardians to raise them if you pass. Maybe your children are now responsible adults, and you can name them as trustees, executors and agents, instead of your parents or siblings. Maybe you’ve realized that your first born male child is no longer the most appropriate trustee.

It could be that you have made new friends and have lost old ones. Or maybe you have new interests, and the charities you once named as beneficiaries do not appeal to you any longer.

A child could have become disabled, or now has a substance abuse problem. Maybe your daughter-in-law (That gold-digger!) has turned your son against you and you can’t even visit your own grandchildren. Maybe one of your adult children is so bad with money that you don’t want him or her to get it all at once because you just know that it will be cast away, spent on frivolity.

It could be that you want to leave something to your grandchildren directly because they’ll need it more than your children, if only because it’s so difficult to buy a home in the Bay Area these days.

Also look at your life insurance policies, annuities and retirement accounts. Who are the beneficiaries? Do they still make sense? Failing to ensure that you have designated the IRA beneficiaries that you want is the most expensive mistake most people can make, because if you die without a beneficiary, the ability to defer paying income tax on a non-Roth IRA is lost, and the IRA may also trigger a probate.

Finally, look at your account statements and make sure that everything is in the trust unless your attorney said otherwise.

The point we are trying to make is that an estate plan isn’t static. As the years go by, your family members will have different needs, challenges and capabilities than they did years ago when you first created a will or trust. Your own situation will also change and your needs will change too. So now’s as good a time as any to have a look.

Len & Rosie

Dear Len & Rosie,

My mother died one week ago. She has a trust. I am the trustee. My 33-year-old nephew (her grandson) has lived with my mother from the time he was 18. In the last few years he has gotten into drugs. Two weeks before my mother died, my nephew took her to several banks, and coerced her into giving him $2,950.

We did an intervention on him. He was told to go to treatment or go to jail. He said he would enter a drug rehab program but of course he didn’t do it. I changed the locks on mother’s home, but a police officer said I have to let him back in because he gets his mail there. He lived with my mother for 15 years and never paid her a dime. Please help.


Dear Karin,

You probably shouldn’t have threatened your nephew with jail time if he didn’t behave. It smells of extortion. What you should have done was to have called Adult Protective Services. They could have put real pressure on your nephew and if he went into rehab, or a jail cell, you wouldn’t have this problem right now.

We respectfully disagree with the police officer you spoke to. Your nephew isn’t a tenant. There’s no lease. He was a guest. Your mother could have tossed him out onto the sidewalk at any time. The police wouldn’t help her do it without a court order, but your nephew has no legal right to occupy your mother’s home. You can kick him out anytime you want.

On the other hand, throwing someone out onto the street is fairly harsh, although it’s probably justified under the circumstances due to your nephew’s behavior. Most of the time, we advise our clients to give such squatters 60 days notice to terminate their “tenancy,” if only to be nice about it.

If your nephew the junkie is no longer there, don’t let him back in. Make arrangements for his stuff to be delivered somewhere. The police can’t arrest you for not letting him back into the home. It’s a civil matter. Just understand that if he manages to get it together, he may try to sue you for an illegal eviction, pretending that he’s a tenant instead of a leach. Maybe he’ll even concoct an argument that he’s entitled to compensation for taking care of his grandmother for 15 years. It wouldn’t be the first time we’ve seen this happen.

He may even manage to break into the home and reestablish his residency. We’ve seen children of clients cocoon themselves inside the family home, claiming they have an inalienable right to stay there. Somehow, these children never turn into butterflies and fly away. If he still resides in the home, because you let him back in or he snuck in behind your back, you have two options. Either give him notice and file an unlawful detainer action, or pay him off.

Pay off the man who stole from your mother? If he’s willing to go away for the cost of a security deposit and first month’s rent, you’ll spend less money on him than it may cost you to evict him, not taking into account the damage he could cause to your mother’s home if he is left to his own devices pending an eviction.

You need a lawyer. Not only for trust administration, but to deal with your nephew. When everything works out well, trust administration, and even probate, is a more or less mechanical process. That all goes out the window when there’s a dispute. It will likely cost you more in lawyer fees than an ordinary trust administration, but don’t blame the lawyer. Blame your nephew.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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