The Wall Street Journal reports that there has been an upswing in the sales of cemetery plots. As peoples’ financial situations worsen, they are turning to their assets for the hereafter to pay their bills for the here-and-now.

There is little likelihood that you’d be able to sell your plot directly back to a private cemetery, but municipal cemeteries and brokerages are more easily able to turn them around for resale. There is also the option of unloading the plots on the secondary market. A number of websites aid the direct sale of cemetery real estate. The crypt above Marilyn Monroe recently got bids as high as $4,602,100 on eBay, for example.

However, if you’re going to be buying or selling on the secondary market, I’d like to highlight the precautionary measures advised by the WSJ article.

Sellers need to be sure their cemetery allows them to sell on the secondary market. It’s also worth checking with the cemetery to see if they will in fact buy back the plot.

Buyers should make sure the seller is the owner on record with the cemetery to ease the transfer of ownership. And, check with both the seller and the cemetery to see if ancillary costs, such as headstones or burial services, are included in the purchase price.

If you are thinking about buying or selling a plot, check out this website http://plotexchange.com/.

James D. Perry

Nearly 70 percent of those 65 and older will need some sort of long-term care before they die, and already Americans are spending an estimated $160 billion on long-term care services, such as nursing home stays and in-home care.

Emerging within the health care debate is a national discussion on the cost of long-term care for the elderly and disabled.

A news story out of Miami this week highlighted the plight of Gillian Lloyd who is struggling to continue caring for her aging parents despite the sizable nest egg they put together prior to their retirement.

Her 84-year old mother suffers from Parkinson’s and her 85-year old father has dementia. Their retirement fund of nearly a half-million dollars is almost gone after paying aides for in-home care, and Lloyd doesn’t know where to turn next.

Medicare doe not cover long-term nursing home stays, and Medicaid is unavailable to all but the poorest. With the increasing costs of long-term care on Medicaid, officials say the spending is unsustainable. And yet, the current proposed health care plan in Washington D.C. doesn’t really address long-term care.

The late Sen. Ted Kennedy’s proposal included provisions for Americans to buy long-term care insurance from the government at a minimal cost, but since his death, none of his colleagues have taken up the cause or proposed alternatives, and the Obama administration remains silent on the issue.

As of now, it remains to be seen how Congress will choose to address the issue of long-term care costs, but this is definitely an area of policy to watch.

James D. Perry

In my wills and living trust practice, it’s routine for a client to come in wanting to draft a will. From time to time, that client doesn’t speak any English. This may be a bit of a hurdle, but drafting the will is far from impossible.

Where the would-be testator speaks a different language, a translator will be called in, either by me or by the client, and together, we’ll hash out the details and make sure the will is drafted to specification in accordance with California laws.

The requirements to execute a will in California are the same for everyone, regardless of language, literacy, or physical disability. Your will is valid even if you can’t read the words on the paper. The same goes for your living trust document.

In the deciding case on this issue, the court ruled that a California resident who spoke Italian and very little English still had a valid will because the testator’s friend had translated as the lawyer read the document during execution proceedings, and because the testator indicated that he understood what was in the will.

The policy behind this is to encourage people to make arrangements for the orderly distribution of their property to their intended beneficiaries either by their last will, or through a revocable living trust.

Failure to have a valid will or living trust in place could result in your property going to legal heirs that you would just as soon disinherit.  Our lives and relationships are complex, and they deserve the extra effort that comes with drafting a will, or a living trust – even if it’s done in a non-native language.

Ultimately, my job is to make sure I draft the document to the client’s wishes, and to ensure that he or she is fully aware of and satisfied with the content whatever his or her native tongue.

The desire to protect our assets and provide for our loved ones is universal. Don’t let a language barrier stop your from carrying out your last wishes for your estate.

James D. Perry

 Where should you keep estate-planning documents prepared by your attorney?  Where should people expect to find your living trust, will, durable power of attorney and advance health care directive? You want to be sure that those documents stay safe and can be easily found when your family needs to find them.

For those of you in California, I suggest that you do not keep them in a safe deposit box at the bank.  They will be safe there, but not accessible when urgently needed.

Your safe deposit box won’t be easy for your friends or family to open it if you’re not there. This is true even if they are co-owners of the box. Having the key isn’t enough to get the bank to open it up for them — the bank wants you to prove that you have the legal authority to require them to open it up. So here’s the conundrum: the document granting your friends or family the right to act on your behalf as an executor or as the power of attorney/agent is inside the box, and until the box is opened, they can’t prove that they have the authority to get the bank to open it…etc.

Safe deposit boxes are often inside a bank, which may be closed over the weekend. If a durable power of attorney or advance health care directive is needed over the weekend, no one will be able to get to it until Monday. In a medical emergency, the advance health care directive should be easily accessible.  If you insist on keeping your documents under lock and key either at a bank or at home, make copies of your durable power of attorney and advance health care directive, which can easily be located.

Most estate attorneys agree that the best place is in your home where the documents can easily be found when they are needed. Some suggest that you don’t lock them into a box for safekeeping inside your home, because that would be as difficult to penetrate as a safe deposit box.

My advice, simply leave them in a file cabinet or drawer, or inside a desk, on a shelf or binder somewhere else that is obvious to anyone looking for them.  

James D. Perry

Michael Jackson was laid to rest in Glendale last week, and after much controversy surrounding the costs of the funeral – initially, the City was going to foot the bill, to the dismay of the taxpayers – it was finally decided that the estate would pick up the tab.

And apparently, it was a big tab.

The Los Angeles Times wrote that attorney Jeryll S. Cohen urged Probate Judge Mitchell Beckloff to approve the expenses for interment at Forest Lawn Memorial Park amongst lavish decorations saying the costs “may not be appropriate for an ordinary person, but Michael Jackson was not ordinary.”

Under probate law, all the debts of an estate must be paid before beneficiaries get their share. And, in California, there is a general rule as to how much of an estate will go toward the funeral expenses.

The law specifically states that appropriate funeral costs include the reasonable cost of interment, family plot, and endowment care. Those costs though, are to be calculated “proportionate to the value of the estate and in keeping with the standard of living adopted by the decedent.” Any outrageous bills may require additional justification and judicial approval.

Judge Beckloff OK’ed the payments.

Jackson lived enormously, and he will rest in peace as such surrounded by statues and stained glass windows.

An attorney representing Jackson’s children did not appear concerned that the funeral costs would overburden the estate to the detriment of her clients.

James D. Perry

I have a 75 year-old client* who is the trustee of his aunt’s trust. He had a stroke before the final tax return on his aunt’s estate was due and ended up filing the return nine months late. Approximately $20,000 was due in taxes, and nearly $10,000 was assessed in penalties.

Mercifully, because of the circumstances of his illness, it’s likely that the IRS will simply drop the penalties. Currently the law gives the IRS broad discretion to waive penalties where the taxpayer can show he or she made a good faith effort to obey the tax law.

However, under a new tax provision included in a health care bill before Congress, that discretion may be wiped away.

James M. Peaslee of the Wall Street Journal writes that the provision has escaped public notice because it is buried so deeply in the bill under a section dealing with abusive tax shelters. The language is unforgiving for those who deliberately fail to file their tax returns, but it is downright merciless for the “honest but errant” taxpayer, slapping Aunt Jane and her heirs with fees they don’t deserve.

Peaslee points out that similar changes to the penalty system in the past caused too many headaches for the IRS and taxpayers alike, prompting Congress to backpedal on discretion limitations. But not before tax professionals and taxpayers struggled for years trying to comply.

If this bill passes with that provision in tact, family members, estate administrators, and trustees aren’t going to get any sympathy from the IRS when their loved ones die.

James D. Perry

(*)Details have been changed to protect confidentiality.