America’s prison population is nearing 2.5 million – roughly 1 person in every 133 – so it’s not unusual that I’ve had clients who have friends or family who are incarcerated.

Leaving assets to a federal, state, or county inmate comes with some bureaucratic hurdles and must be done with careful assessment.

In California, when an individual dies leaving an inheritance to a prisoner, both the Department of Corrections and Rehabilitation and the Victim Compensation and Government Claims Board must be notified. If a prisoner owes any money as restitution as part of his or her criminal sentence, the VCGCB with the help of the Franchise Tax Board is going to take its chunk first.

For example, I had an elderly client with very little family who willed part of his estate to a friend doing a few years’ time in state prison. His friend did not owe any restitution on his sentence, and all lawyers and state agencies involved were properly notified.

However, it was later discovered that he hadn’t paid child support to his wife in over 15 years. The arrearage was near $100,000, which was roughly equal to the value of the inheritance my client left him.

In some states, the department of corrections may even collect the cost of incarceration from an inmate’s inheritance by filing a lien in probate court. The State of Connecticut’s laws allow the probate court to extract the cost of incarceration or 50 percent of the inheritance, whichever is less.

If you’re thinking of leaving assets to a guest of the State, I urge caution. If you intend to provide a nest egg for a prisoner’s reentry into society, be aware of the debts they may have incurred as a result of their crimes, and recognize that they don’t have the autonomy to make decisions regarding that chunk of change until their release.

James D. Perry

My family said goodbye last month to my dad who celebrated his 94^th birthday last June and had lived a full life. He spent his final weeks at home with hospice care surrounded by the people he loved.

He manifested signs of dementia during his final years, but we were able make the decisions necessary for his medical care because he had an advance health care directive which set for his wishes for end of life care.

People hoping to avoid a prolonged dying process or to prevent family confusion and turmoil should execute an advance directive. Because a stroke or auto accident can lead to severe impairment, it’s never too early to have a plan in place.

The first step is to draw up an Advanced Directive for Health Care. This is known in some states as a living will. You can specify your preferences on a wide range of options – resuscitation, hydration, drugs, intubation, etc. – requesting that you want everything to be done or limiting medical interventions.

The second step is to appoint a health care agent, someone you know well and trust, to whom you designate to make medical decisions for you by way of your health care directive. That person will use your advance directive as guidance to make decisions that you yourself cannot make due to incapacity.

Your health care proxy should be someone who knows you well and someone who will be willing to carry out your wishes, even in the face of family conflict. Your agent in California will also be the person responsible for implementing your wishes for disposition of your body after your death.

Once your advance directive is in order, be sure to give a copy to your doctors, the proxy, your attorney, and your family. Be sure to communicate with your relatives and health care providers about your concerns and wishes.

All who knew my dad miss him and grieve his loss. Still as a family, we are comforted that he lived and died just as he wanted without unnecessary trips to the emergency hospital, or unwanted medical intervention, at a time when he just wanted peace.

James D. Perry

California residents started the new year with a bevy of changes to state law governing estate planning. One notable change is to California’s No Contest Clause Statute.

A no contest clause includes language in an estate planning instrument that warns heirs from challenging any provisions in the will at the risk of being disinherited in the process.

No contest clauses were originally seen as a way to avoid costly litigation and the public airing of dirty family laundry, and were fully enforced in California courts.

However, the California Law Revision Commission, while scrutinizing the statute in 2008, determined that the intent and the reality were far divorced from one another. Today, the Commission finds that no-contest clauses are too often being used by greedy and dishonest heirs as a tool to blackmail other family members into settling their disputes out of court. And heirs who had legitimate concerns that the instrument was executed fraudulently, under duress, or while the testator was mentally incapacitated were forced to seek judicial review under safe harbor hearings that would protect them from being disinherited.

As of January 1, 2010, California courts are giving no contest clauses included in wills and revocable trusts greater scrutiny. This means that no contest clauses included in wills or revocable trusts which became irrevocable on or after January 1, 2001 will remain enforceable, but heirs hoping to make a good faith challenge to the instrument will not be immediately disinherited upon challenge. Good faith probable cause challenges may be based on allegations including, but not limited to forgery, incapacity, duress, fraud, undue influence, or revocation.

If you have any questions about your estate planning documents or the effects of your no contest clause, contact your estate planning lawyer.

James D. Perry

The daughter of oilman Alfred C. Glassell Jr., founder of Transcontinental Gas Pipe Line Co., is contesting his will in a Texas probate court saying he was manipulated by his lawyers to leave most of $500 million fortune to charity.

Glassell executed a will in 1998, which left his daughter, Curry, and her two sons more than $100 million. But she is challenging his 2003 will, believed to be the final one Glassell signed before his death last year, which transfers most of his money to Houston’s Museum of Fine Arts and to a family foundation run by Curry’s younger half-brother.

The probate lawyers trying the case told the jury panel that Glassell must be declared mentally incompetent at the time he signed the 2003 will for it to be invalidated.

This is a big risk for Curry as the 2003 will contains a broad no-contest clause. If Curry doesn’t win her fight in probate court, she forfeits her entire inheritance, which is roughly one-tenth the size of the one bequeathed to her in the 1998 will – still a sizable chunk of change.

The state of California gives full force to no-contest clauses with a few exceptions, and they can be especially beneficial where family dynamics are tumultuous.

A no-contest clause is a provision in a will, trust, or other estate-planning instrument to the effect that a beneficiary who contests the instrument forfeits any gift made by the instrument. It is intended to reduce litigation by disappointed beneficiaries.

California law includes probable cause exceptions for menace, duress, fraud, or undue influence where a beneficiary who challenges the document with probable cause would not be subject to forfeiture under the clause.

Curry doesn’t have that protection. If she prevails in her challenge, she may nullify his 2003 will and have the 1998 will declared valid.

Or she could lose everything.

James D. Perry.

Joe Jackson is reported to be seeking “some manner” of support from the Michael Jackson estate.

Michael Jackson’s father is seeking an allowance from his son’s estate to help cover expenses that exceed $15,000 a month, according to court documents filed Friday.  The request seeking an unspecified amount for Joe Jackson was filed by lawyer Brian Oxman, who said there was no apparent reason for the administrators of the estate to not seek an allowance for the Jackson family patriarch.

The King of Pop’s 2002 will, however, omitted any mention of his father.  The two had an often-strained relationship, and Michael said at one point that he would get physically sick — as a child and as an adult — at the sight of his father.

The singer’s private trust calls for money to be paid to his mother, Katherine, his three young children, and various charities when his estate is distributed.

Under California Probate Law, during the time Michael’s case is still pending in the probate court, prior to final distribution to the named beneficiaries, family members may petition the court for a “family allowance.”  Top priority for family allowances go to a surviving spouse and minor children, but parents, and sisters and brothers can also ask for a temporary allowance.

It’s totally up to the probate court judge to decide if someone deserves a monthly family allowance.  The judge is allowed to a give an allowance if his or her discretion determines an allowance is necessary for the family member’s maintenance according to his or her circumstances. An allowance is possible if it can be shown that a parent of the decedent was actually dependent in whole or in part upon the decedent for support.

The filing claims that Joe, who suffers from diabetes, was supported by Michael before his sudden death through payments made to the singer’s mother, Katherine,  — Joe’s wife  — which were passed on to Joe.??Joe says his expenses exceed $20,000 per month, but his income from U.S. Social Security is a mere $1,700.

“Mr. Jackson’s circumstances require a family allowance because he is 81 years old and Michael Jackson supported him in the same manner as his wife, Katherine Jackson, who was Michael’s mother and who the court granted a family allowance on October 2,” says the petition.

If the court gives Joe an allowance it will be interesting to see if Jackie, Tito, Jermaine and Marlon, Rebbie, LaToya, Randy, and Janet follow with their own petitions to the court.

Stay tuned, a decision on Joe’s request comes on for hearing in January.

James D. Perry

Former NFL quarterback Steve McNair was shot and killed in what police have deemed a murder-suicide on July 4, 2009, apparently at the hand of his mistress.

He left a wife, Mechelle, and four young children (two from a previous relationship), and no will or estate plan.

McNair’s estate is sizeable. He earned more than $90 million in his playing career, not including marketing and endorsement deals. At last inventory, his widow listed his estate assets at around $19.6 million.

Mechelle McNair hired a probate attorney and was granted the legal authority to administer his estate. However, in the probate petition, she listed only herself and her natural children as heirs saying she didn’t have proof that the other two were McNair’s natural children.

McNair was ordered by Mississippi courts to provide child support for the two children, which seems to indicate that Mechelle really had no reason to doubt their parentage. And while it doesn’t appear that Mechelle plans to challenge their claims to the estate, the two children – both of whom have attorneys representing their interests – have not yet filed as beneficiaries.

And most recently, another Mississippi woman has come forward claiming that McNair fathered her 17 year-old daughter.

And these are just the claims from McNair’s heirs and potential heirs. This says nothing of his outstanding debts, one of which may be unpaid rent for an apartment that may have housed a second mistress.

This sad story of his death is further agitated by the fact that this family’s grief and indiscretions must be played out in public.

Even if you are not a celebrity, or weren’t murdered by your mistress, there is no privacy when your assets go through the probate court – not from the media nor from the nosy neighbors next door. Everything is out there for the world to see, your debts, an itemization of each of your assets, and the names and addresses of your heirs.

A good estate plan can avoid this. Just do it.

James D. Perry

Richard Pryor’s widow, Jennifer Lee, and one of his daughters, Elizabeth, have been warring in the courts over his estate since 2005.

Pryor was a well-known comedian and actor. He was married seven times to five different women. He and Jennifer married for the first time in 1981 and divorced in 1982. They married again in secret in 2001.

In the mid-1980s, he was diagnosed with multiple sclerosis. Towards the end of his life, Jennifer became his primary caretaker. Pryor died in 2005.

His daughter Elizabeth did not learn of Pryor’s remarriage until sometime after her father’s death. Elizabeth first tried to petition for annulment of Pryor’s marriage, alleging fraud and undue influence.

If she had been successful in getting the court to void the marriage, she may have succeeded in barring Jennifer’s claim to Pryor’s estate under the California law that prohibits caretakers from becoming beneficiaries.

The law exists to prevent caretakers from exercising undue influence over their elderly and infirm clients to gain access to their fortunes.

This case breaks new ground because of the issue of the fact Pryor was married, but that the marriage was not public, thereby making it impossible for anyone to know of or challenge the marriage as a product of undue influence or incapacity on the part of Pryor.

The court has now said that it’s too late to challenge a marriage after death. This looks like a road map to ripping off the elderly or infirm – just marry them in secret and keep it quiet until after they are dead.

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

Healthcare has been dominating the national news and has sparked a lot of debate about medical costs, elder care, and end-of-life care.

One rather controversial op-ed piece by Richard Dooling for the New York Times highlighted the lopsided spending on life and lifestyle sustaining medical care for octogenarians and nonagenarians.  He suggested a reorganization of medical care priorities, such as shifting government dollars from bypass surgery and titanium knee-replacement surgery for elderly patients to preventative care for children at pennies on the dollar.

Among the responses to this article – ranging from outrage to applause – was a letter to the editor from Adele Welty in Flushing, Queens, a “73-year old grandma” who pointed to the importance of advance directives as one solution to generational medical care cost gap Dooling described.

I am a strong proponent of advance directives, which will clearly identify for doctors, nurses, hospital staff, and family members your wishes regarding emergency medical care and end-of-life care should you become incapacitated.  In fact, just recently I heard from the family member of a client who was able to instruct medical personnel as to the client’s wishes about life-saving care and life support using an advance directive signed two weeks prior.

Adele paints a grim picture of “being put in some sort of time warp of machine-generated life support, tortured with tubes and left to rot in an undignified and helpless state with no hope of recovery, a heartbreaking burden to [her] children” as her reason for signing an advance directive.  But you need not have Adele’s fear to know that an advance directive is just another responsible part of your overall estate plan, ensuring that your life and legacy are in your control to the very end.

James D. Perry