1. Myth: If I agree to donate my organs, the hospital staff will not work as hard to save me.

Fact: When taken to the hospital for treatment, the doctors and staff are concerned with saving your life, not of saving others. The specialists that treat you have nothing to do with organ transplantation.

1. Myth: Maybe I won’t really be dead when the hospital signs my death certificate.

Fact: Unlike what is perceived on television, doctors perform more tests on individuals who have elected to donate rather than not, at no cost to the donor or their family, in order to determine that they are dead.

1. Myth: Organ donation is against my religion.

Fact: Organ donation is consistent with most religions including Catholicism, Protestantism, Islam and most branches of Judaism. For more information, you should contact a member of your clergy or review the federal website, OrganDornor.gov for transplantation information by religious denomination.

1. Myth: I’m a minor under age 18. I’m too young to make a decision about donation.

Fact: While legally a minor cannot make this decision, a minor can inform their parents of their wish and the parent can make the decision if necessary. A child who needs an organ, most likely needs a smaller organ which an adult donor cannot provide.

1. Myth: I’m too old to donate my organs. Nobody would want them.

Fact: Whether an organ can be used for transplantation is dependent on strict medical criteria, not age. There have been successful transplants from donors in their 70s and 80s. Don’t automatically disqualify yourself based on age. Let doctors decide whether your organs are suitable for transplantation.

1. Myth: I don’t have the best health. No one would want my organs.

Fact: Very few medical conditions automatically disqualify a donor. The decision of whether an organ can be donated depends on strict medical criteria. It is possible that one organ is not suitable for successful transplantation where other organs and tissue may be fine. Let medical professionals decide if your organs are suitable for transplant.

With over 100,000 people waiting for an organ donation in the United States, it is necessary for individuals to make informed choices. Saving someone’s life isn’t always in the hands of doctors but rather in the hands of the community.

For more information, see http://www.mayoclinic.com/health/organ-donation/FL00077

1. Your Facebook page after your death: http://www.huffingtonpost.com/dori-hartley/death-on-facebook_b_1459107.html
2. A new service to let you “social media”  from beyond (kinda): http://thestir.cafemom.com/technology/137070/the_eerie_new_site_that
3. Each Social Media’s policy when a user dies: http://www.consumersearch.com/blog/what-happens-to-your-social-media-accounts-when-you-die
4. Even purposed Nebraska legislature to make social media part of your estate: http://www.webpronews.com/nebraska-facebook-accounts-deceased-2012-02

I sometimes have a love/hate relationship with Facebook—as I often say to my friends, Facebook is the Global answer to a small town newspaper. Make sure you don’t wear your slippers to the grocery store or everyone will know! (Those of you who grew up in a small town know what I am talking about.)

On the flipside it is a great way to keep in touch with loved ones at a distance, get updates from your favorite businesses (https://www.facebook.com/falkandcornell) and spread the word to many people at once about an important life event.

Last September our paralegal, Kim Thomas, wrote a great blog about digital assets http://www.falkandcornell.com/blog/category/digital-assets/ and why it’s important to keep track of them and provide passwords to your successor trustee(s) and/or spouse. One of the categories was social media. So, with all the facebook news coverage I thought I would take this opportunity to let everyone know what can/does happen to your social media accounts and remind everyone to complete your digital assets worksheet on our website http://www.falkandcornell.com/estate-planning/forms.htm, keep it updated for your spouse/partner and/or successor trustee(s) and don’t forget about your social media accounts.

There have been a lot of articles on what you should do if you win the lottery.http://finance.yahoo.com/news/keeping-cool-mega-millions-040100395.html One important thing I noticed that was overlooked was seeing an estate planning attorney. When you come into a windfall it is important to remember your estate planning. There are many issues to be dealt with, not only at your death, but dealing with your money during your lifetime.  Your estate planning attorney can help with much more than just “where does my money go when I die?” planning.  Don’t forget about planning should you become incapacitated and also gifting during your lifetime—some ways are better than others to pass money along to your loved ones and charities.

A windfall isn’t always just winning the lottery; it can be a significant bonus from work or inheriting money. And don’t forget, 2012 is an important year for gifting as there are currently very favorable gifting laws.

If you would like more information about gifting options for 2012 please contact our office to schedule a complimentary consultation with one of our attorneys.

ÿ        The name of the Estate or Trust

ÿ        The date the Trust was created

ÿ        The date of death of the decedent

ÿ        A copy of the Will and a copy of the Trust (The Will may be the Trust document if the trust is testamentary)

ÿ        The EIN number issued by the government (Trustee applies for this; it is much like a social security number for an individual)

ÿ        A copy of the death certificate

ÿ        The information for all of the beneficiaries including names, addresses, and social security numbers

ÿ        A copy of the last returns filed for the decedent

ÿ        A list of assets

ÿ        An accounting (if one has been completed for the current fiscal year)

Though this new change in law may be beneficial to those relying on the use of a Will, it should not be an excuse to not revisit your Will for compliance with current California law. Recently, we assisted a client in petitioning the court for letters of testamentary so that he could represent his mother’s estate. Today, Attested Wills are signed by two disinterested witnesses, who attest that the Will was signed in their joint presence, at the request of the Testator, and declaring that the Testator was of sound mind. If the witnesses signed under penalty of perjury, the Will is self-proving and the Will can be admitted to probate without the testimony of any subscribing witness.

Unfortunately, signing under penalty of perjury was not the law in 1979.  The court today requires that all Wills admitted for probate be signed under penalty of perjury. However, if not, the attorney or the person petitioning to be the legal representative must have a Proof of Subscribing Witness signed. This entails contacting one of the witnesses and asking them to sign, now under penalty of perjury, that they did in fact witness the Testator’s signing of the Will. This may not only be a cumbersome request to locate witnesses from three decades ago but may be an impossible feat. The witnesses may not be locatable or may have died. After completing a diligent search, if no witnesses are ascertained, an Affidavit can be submitted to court stating that no witnesses can be found and that the Will should still be admitted to probate.

While it is possible to have an older Will probated, which is not in compliance with current law, additional time and expense could be saved if a Will, which is not signed under penalty of perjury, was updated and re-executed.

As I was watching Sunday’s episode they flashed back to a scene where Mike and his wife Susan were discussing their wills; they had just had one drawn up, and Susan had reservations about signing them. She said it might jinx things, and besides they were young and had plenty of time to address this issue at a later date. In the end, Mike finally did convince Susan to sign the will.

Turns out Mike did not have plenty of time, but he did make sure his wife and son were taken care of in case of his untimely death.

Life can be very unpredictable; do not put off your  estate planning any longer. If you would like a free consultation with one of our attorney’s please contact Falk, Cornell & Associates  at 650-436-1550 or visit our website at www.falkandcornell.com 

The problem is that many of us don’t make it a priority, and for various reasons: maybe you don’t think you have enough assets to make it worthwhile, or you expect your family to get along and sort it out for themselves, or because maybe you are healthy and young so there is no sense of urgency.  The problem is you never know what might happen.

What do you think will happen?  Well, if you die intestate (which simply means without a will or anything), then your assets will pass to heirs under the California Probate Code.  If you are married or in a registered domestic partnership then your half of any community property will automatically pass to the survivor along with any separate property you own if you don’t have any children.  So, where your assets go will depend on the nature of the property—community or separate, and who survives you.

If you die intestate with assets valued at more than $150,000, then someone will have to go to the probate court to get appointed to manage your affairs and to change title to your assets.  And even if you have a will, it has to go through the probate court too!  One of the few differences being that if you die intestate, then the court will appoint someone (not necessarily who you would have chosen), called an “administrator,” versus if you have a will, then it will be the person you appointed in your will, called the “executor.”

Someone will have to take steps to begin this process by filing a petition in the probate court.  The cost of filing this petition is $395, and the process, which can be quite lengthy, is also expensive because it also involves administrator/executor fees as well as any attorney fees before your assets are distributed to your heirs.  Again, if you die intestate then who inherits depends on the type of property left and who survives you.  If you leave a valid will, then your assets will pass to those named under your will (assuming no one contests or challenges—if so the court will resolve any disputes).

So, a big chunk of your “stuff” may be spent on court costs, administrator/executor fees, and attorneys’ fees before it can be distributed to your family members.  On top of that your estate may be subject to estate taxes, but this will depend on the year you die and the value of your estate.  For people passing away in 2012, the first $5,120,000 will pass free of estate tax, but under the current law this will go down to $1,000,000 in 2013.

Many of you are probably wondering how can I avoid probate?  A living trust can avoid probate not only after you pass away, but also during your lifetime should you become too ill or disabled and no longer able to manage your affairs.  I’ve previously covered some of the benefits of having a living trust versus a will alone, view it here: http://www.falkandcornell.com/blog/2011/10/benefit-living-trust-checks-balances/.  A living trust can also reduce estate tax consequences.

By taking steps now you can save your family a lot of time, money, and aggravation.  And there are other factors you should consider as well.  For instance, if you are a parent of minor children, you may want to designate who would be guardian over your children.  For more information about appointing a guardian, see my previous blog entry here: http://www.falkandcornell.com/blog/2011/09/parent-young-children/.  We’d be happy to answer any specific questions you may have during a complementary meeting to discuss your individual situation.  So stop putting it off, take action now to get your affairs in order.  Your family will thank you for it.

Though this new change in law may be beneficial to those relying on the use of a Will, it should not be an excuse to not revisit your Will for compliance with current California law. Recently, we assisted a client in petitioning the court for letters of testamentary so that he could represent his mother’s estate. Today, Attested Wills are signed by two disinterested witnesses, who attest that the Will was signed in their joint presence, at the request of the Testator, and declaring that the Testator was of sound mind. If the witnesses signed under penalty of perjury, the Will is self-proving and the Will can be admitted to probate without the testimony of any subscribing witness.

Unfortunately, signing under penalty of perjury was not the law in 1979.  The court today requires that all Wills admitted for probate be signed under penalty of perjury. However, if not, the attorney or the person petitioning to be the legal representative must have a Proof of Subscribing Witness signed. This entails contacting one of the witnesses and asking them to sign, now under penalty of perjury, that they did in fact witness the Testator’s signing of the Will. This may not only be a cumbersome request to locate witnesses from three decades ago but may be an impossible feat. The witnesses may not be locatable or may have passed. After completing a diligent search, if no witnesses are ascertained, an Affidavit can be submitted to court stating that no witnesses can be found and that the Will should still be admitted to probate.

While it is possible to have an older Will probated, which is not in compliance with current law, additional time and expense could be saved if a Will, which is not signed under penalty of perjury, was updated and re-executed.

First I would like to congratulate all of the winners of the 84^th Annual Academy Awards, http://oscar.go.com/, what an amazing honor to win an Oscar.

Admittedly, I did not actually watch the Academy Awards this year, but I have been following all of the hype in the news, especially the photos of the amazing evening wear. All of this got me thinking, what happens to the Oscar statuette when a winner dies? The answer is pretty interesting, and leads me a very interesting story about one statuette in particular.

First, what happens to a statuette when the winner dies? According to Wikipedia: http://en.wikipedia.org/wiki/Oscar_statuette#Oscar_statuette

“Since 1950, the statuettes have been legally encumbered by the requirement that neither winners nor their heirs may sell the statuettes without first offering to sell them back to the Academy for US$1. If a winner refuses to agree to this stipulation, then the Academy keeps the statuette.”

Prior to 1950 no agreement was in place regarding the Academy’s ownership of the statuette. Leading to an interesting chain of ownership and legal battles for Orson Welles’ 1942 Oscar, which he received for writing Citizen Kane.

http://www.reuters.com/article/2011/12/21/us-oscar-citizen-kane-idUSTRE7BK0KO20111221

Orson Welles supposedly lost his Oscar. After he died in 1985 the statuette resurfaced and was auctioned by a cinematographer who claimed Welles who used it as a payment to him. Welles daughter, Beatrice, sued and won ownership only to be sued by the Academy. Beatrice ultimately won ownership after the court ruled Orson Welles had not signed the above mentioned agreement. Beatrice sold it to a non-profit, who, unsuccessfully, tried to auction it off in 2007. As of December 2011 it was auctioned off for more than $860,000 to an unnamed bidder.

Hollywood makes great stories, sometimes unintentional!