Don’t type this at home.
Posted: February 10, 2012 Filed under: Law | Tags: Estate Planning, Holographic Will, Wills 2 Comments »I considered titling this post “Don’t try this at home” but the truth is, you can try it. Just don’t type it!
I recently got a call from a gentleman who was in a quandary over a situation involving his grandfather’s will. His very elderly grandfather, I believe he was in his 90′s, had recently passed away. Several years prior he had executed a will giving his property equally to his 4 children.
However, the gentleman said that there was also a letter that his grandfather had written a few years after the will was executed. The letter was from his grandfather to one of his children. In this letter, his grandfather expressed her desire that, despite what the will said, he wanted this child to have one particular piece of his property and that the rest of his property should be divided equally among all 4 children.
The particular piece of property was quite valuable and would have drastically changed the amount each child received from their father’s estate. The question was, “Is the letter a valid will?”
California Probate Code section 6111(a) states that a will is valid, even if it is not witnessed, “if the signature and material provisions are in the handwriting of the testator.”
I asked the gentleman: Did your grandfather sign this letter? Yes. Did he write the letter in his own handwriting? No, he typed it up and signed it. Was any part of the letter handwritten other than the signature? No.
I told the gentleman that the will was invalid because the material provision (i.e. “I want you to have this particular piece of property.”) was not in his grandfather’s handwriting.
The law allows for handwritten wills. In legalese, a handwritten will is known as a holographic will. The law trusts that if a person, in their own handwriting, writes out what they want to happen to their property, and signs the piece of paper, then it must be what the person wants to happen. However, to help remove the temptation that someone may have to take advantage of an elderly person (“Here papa, I need you to sign this. It’s going to [insert lie here].”), the law requires that the will actually be in the person’s own handwriting.
With the gentleman I spoke with, who knows what the truth of the situation was. It may be his grandfather typed out the letter and signed it, thinking he was doing it right, but made a mistake. Or it may be that someone was trying to take advantage of him in his old age.
In any event, if you were the judge, and someone brought you a typed letter that was signed by someone when they were very old, and there were no witnesses, and the person died not long thereafter, and the letter made drastic changes to what had been expressed by the person in an earlier valid will, would you say the letter was valid? Neither will the law.
The Sometimes Fast But Never Furious Metro Rail
Posted: February 8, 2012 Filed under: Los Angeles | Tags: Hollywood, Metro Rail, Southwestern Law School 1 Comment »Ten years ago I moved to the Los Angeles area. Southwestern Law School was near the Red Line Station at Wilshire and Vermont and I lived near Hollywood and Highland so I was able to ride the subway to school.
A short time after moving to Los Angeles, I met a gentleman at a little soiree in West LA and told him that I was in law school and mentioned I rode the subway to and from school. As soon as I mentioned the subway he said, in utter disbelief, “Wait, you ride the subway? An underground subway? In Los Angeles? There is a subway in Los Angeles? In Hollywood?”
“Yes,” I assured him, there is a subway in Los Angeles. Even though I explained that I rode it 5 times a week, even though the original section of the Red Line had been open for almost a decade at this point, and even though there existed at the time, the Red Line, Blue Line, and Green Line, he could not believe there were underground trains in Los Angeles. He looked at me like I was insane.
Despite the incredulity of this gentleman in West LA, over the past decade I have grown to love riding the Metro Rail here in Los Angeles.
Riding the Metro Rail is relaxing. I commuted from Alhambra to Santa Monica for 4 years I think the stress of all that traffic took precious years off my life. When I was stuck in traffic, my mind raced, my eyes scoured ahead and behind, searching for the magic lane that would get me to my exit a few precious seconds earlier. Even when I gave up and resigned myself to my lane, no matter how slow it moved, the starting, stopping, starting, stopping, ad nauseam, was mind numbing. Is this any way to spend hours a day? No. It’s not. The Metro Rail is relaxing. There is one lane. Everyone rides on it together. At the same speed. I don’t have to drive. I don’t have to worry about traffic up ahead or behind. I don’t have to worry if I am making good time or not. All I have to do…is ride. Aaaaaahhhh.
Riding the Metro Rail is adventurous. One of my favorite activities with my family is to take a Metro Adventure. We’ve ridden to Chinatown for lunch, we’ve ridden to the Staples Center and other places downtown for fun. I’ve got a long list of places I want to get to with them. Little Tokyo and King Taco (just steps away from the Marvilla Station) on the Gold Line. Hollywood and Universal City on the Red Line. And so on. Soon, we’ll be able to go to Exposition Park and Culver City.
Realistically, the Metro Rail doesn’t always work. Obviously, if my destination is not near a Metro Rail station, it’s not a practical choice. Depending on the route and the time of day I ride, sometimes it saves time, but not always. But even when it doesn’t save time, what it takes in time it more than makes up for in ease of travel and relaxation.
If you don’t ride the Metro Rail much, I encourage you to give it a shot. It’s a fun, relaxing way to travel and it’s a very convenient way to get many destinations whether for work or pleasure.
Commercial Law 101
Posted: January 6, 2012 Filed under: Law | Tags: Civil Litigation, Commercial Law, Contracts, Corporate Law, Entertainment Law Leave a comment »Recently, I explained that one way to conceive of entertainment law is to think of it as resting upon the shoulders of commercial law and copyright. Then, I talked about copyright. Today, I’m going to talk briefly about commercial law.
Broadly speaking, commercial law involves anything related to an act of commerce. Last year alone, films grossed over 9 billion dollars at the box office and there was over 1.6 billion units sold in the music industry. And even though we live in the digital age, last year there were more vinyl record sales than any other year in history, setting a record for the fourth year in a row. Add in all the commerce related to television, books, live entertainment, etc, and America is saturated with entertainment industry related commerce.
Commercial law involves corporate law (running the companies that operate in the entertainment industry) and civil litigation (settling disputes between businesses). Thankfully, a lot more effort goes into running the businesses rather than fighting other ones. At least it better if a company wants to be around for long.
For entertainment companies, like most others, in order to operate they need to properly manage their business, they need to enter into a wide range of contracts, they need to protect trademarks, they need to work with unions, people need to protect their image, and so on. While these things are not unique to the entertainment industry, what makes running an entertainment company different than say, running a natural gas company, is the particular business practices of the entertainment industry. For example, what makes a contract in the entertainment industry can be very different than what makes a contract in the energy industry. Ever heard of a deal made on a napkin for a pipeline? I haven’t.
Like any industry, things go wrong, and people get upset at each other. When this happens, disputes are either resolved amicably (“Let’s settle this.”) or in court (“I’m suing.”). When people sue, the other branch of commercial law, civil litigation, comes into play. This means that the parties, and their lawyers, will be involved with complaints, answers, motions, discovery, trials, judgments, and all the other joys of taking people to court.
The bottom line is, as it relates to commercial law, the entertainment industry is this: it’s a business, and while there may be fewer business suits, there are just as many lawsuits.
The Little Things That Make Good Estate Planning Great
Posted: January 3, 2012 Filed under: Law | Tags: Estate Planning, Estate Settlement, Trusts Leave a comment »Some people plan, and some people plan. This man planned. The link leads to a short article on Forbes.com that talks about a woman’s experience as the executor of the estate of her recently deceased father. Her father went above-and-beyond in setting up his affairs for the smoothest possible transition of his assets upon his death. Among the things her father did to help her settle his estate:
- In the years leading up to his death, when his daughter visited him, he would take her to meet with his lawyer, accountant, banker, and insurance agent so she already had relationships with the people she would be dealing with when her father passed away.
- Her father negotiated a lower fee for the estate settlement with his attorney so money would be saved. Then he put this amount in a targeted bank account so it would be available.
- Years prior, he added his daughter to his bank account so she would be able to immediately keep up with any bills that needed tobe paid, including a large reserve to pay the mortgage on his house if it did not sell quickly upon his death.
- He prepaid for his funeral services and left instructions for his funeral.
- He left other money for unforeseen expenses.
- He left his daughter a binder with information so she never had to worry about where to find the information she needed.
Each of these things individually is a very wise thing to do. Together, the impact is enormous during the emotionally draining process of settling a loved one’s estate. While it is critically important to make sure the key components of estate planning—the trust, life insurance, health care directives, etc.— are taken care of, taking care of these seemingly little things is a huge part of high quality estate planning. My hat goes off to this man. He left his daughter a very, very big gift.
How a Will is like an Oil Change but not a Screwdriver in a Tire
Posted: December 28, 2011 Filed under: Law | Tags: Estate Planning, Pictures, Wills Leave a comment »Few people would ever consider defending themselves in a lawsuit or a criminal trial. Hence the old adage, “a person that represents himself has a fool for a client.” However, in the area of estate planning, often times people do some things on their own.
Several companies offer do-it-yourself kits for wills and trusts and many people take advantage of these. I’ve often seen documents that have been prepared this way. Sometimes the document is perfectly fine. Other times (usually when people attempt something complex), the document contain serious errors. Sadly, sometimes the results have been disastrous.
The way I look at it, estate planning is like auto mechanics. For my car, if all it needs is an oil change, I can do it myself. All it takes is an oil pan, two wrenches, some new oil, a filter, and a little time. It’s a simple and very straightforward process. Anyone with the motivation who is somewhat mechanically inclined should be able to change their oil just fine. However, just as I would rather have trained professionals replace my timing belt, or fix a tire with a screwdriver in it, I recommend that people seek out an attorney for anything more than a basic will.
A basic will is the oil change of estate planning. If someone does their research and determines that all they need is a basic will (sometimes called a ‘simple will’), the process is straightforward and in my opinion most reasonably intelligent people will be able to get through it just fine. The California Probate Code even contains a fill-in-the-blank will, which the State Bar makes available here.
Anyone considering executing a will on their own should be aware of the requirements to create a valid will. These requirements come from the Probate Code, starting in Section 6100, which can be found here.
Here is a summary of the requirements to make a valid will in California:
- You need to be at least 18 years old.
- You need to understand what you are doing and understand the general nature of your property and family.
- You can’t suffer from delusions or hallucinations that effect the will.
- The will can only dispose of your own property.
- The will cannot be made under duress, menace, fraud, or undue influence.
- The will must be in writing.
- It must be signed.
- It must be witnessed by two disinterested persons (see Probate Code Section 6110(c) for additional information about this requirement).
- A handwritten will is valid, with or without witnesses, if (1) the signature and (2) material provisions are (3) in the testator’s handwriting and (4) the document is dated.
I would also add, if anything is unclear or if you have any questions whatsoever, ask an attorney. The rules are very strict. If they are not all complied with, the will will be invalid. But if you are the kind of person that likes to do things by yourself and won’t let yourself get in over your head, go for it.
Speaking screwdrivers in tires, look what I discovered in my tire last night:
Yes, that is a screwdriver. In backwards! How does that even happen? Rest assured, I’m letting the professionals handle this one.
Like this:
‘Tis the Season for Tamales
Posted: December 23, 2011 Filed under: Life | Tags: Food 1 Comment »It would be ambitions of me to consider myself a true tamalisto, but I like making tamales. Tamales, as anyone who has made them will attest, are a lot of work. Because of this, tamales lend themselves nicely towards family gatherings where there are several sets of hands to assist in the long process. Hence, the holidays are a perfect time for making tamales. At the moment, I am half way through the process.
I’ve heard lots of funny comments when people learn I make tamales. “I didn’t think guys made tamales.” “My Mexican grandmother doesn’t even make tamales.” “Do you know how much work that is?” Umm, having made them several times, yes, I know how much work it is. But these are tamales we are talking about! They’re worth it.
I am also asked, “how do you make tamales?” The answer is simple. I follow directions. In reality, following the directions of the umpteen step process of making tamales is little different that following the directions of the umpteen step process of a legal proceeding. In one, you read what to do from a recipe book. In the other, you read what to do from a legal treatise. So, if I can draft and negotiate contracts, form a corporation, create an estate plan, complete a probate, etc., why can’t I make tamales? Several years ago, I decided I could. So I did.
When I first decided to make tamales, my wife bought me a wonderful book called Tamales 101. All I do is follow the directions in this book as closely as I can. This year I am making Red Pork Chile, Chicken Verde (the salsa verde came out spicier than I expected, we’ll see how they taste after they are steamed tomorrow), Tofu Red Chile, and Pumpkin Tamales. Half the fun is making the ones I know everyone will love, and the other half is making something new.
Today, I prepared the fillings and sauces. Tomorrow I’ll make the masa, assemble the tamales, and steam them. Mmmmmmmm. Can’t wait.
For those of you making tamales this year, may you masa float, may your steamer not run out of water, and may you have some help in the kitchen. Merry Christmas!
La-La Land
Posted: December 21, 2011 Filed under: Los Angeles | Tags: Hollywood, Jim Morrison, Metro Rail, Southwestern Law School Leave a comment »“Are you a lucky little lady in the city of light? Or just another lost angel?” Jim Morrisson, L.A. Woman
Next summer, it will be a full decade that I have lived in Los Angeles. I moved to Los Angeles when I began law school. When I drove the U-Haul into town I did not know a soul in L.A. All I knew is that I was starting law school in two weeks at Southwestern Law School and I was renting a place on Las Palmas near the Hollywood Bowl. I chose the apartment for two main reasons. One, I could walk to the Red Line station at Hollywood and Highland to take the Metro to school. Moving to Los Angeles from a city with virtually no gridlock, I didn’t want to add the stress of traffic on top of the stress of law school. So I rode the Metro. Two, I admit it, I thought it would be cool to experience living in Hollywood. And it was.
What I first discovered I loved about the L.A. area and what I still love about it today is the opportunity to see something new every day. I have a lot of friends and family that live elsewhere and to be quite honest, some of them wonder why I live here. I always tell them the same thing. L.A. is great. It has everything — for good and bad. Here in the L.A. area, you can find neighborhoods of every variety, every kind of food you can imagine, people from every corner of the earth, all forms of transportation, incredible diversity of industry, countless cultural and recreational opportunities, proximity to the ocean/mountains/desert, schemers, dreamers, poverty, wealth, lucky ladies (and fellows), lost angels, and on and on. The L.A. area has it all. The variety here excites me and is why I love living here. And when I need a break, the desert is only a short drive away. I tell this to all my friends and family that live elsewhere. Some of them still don’t get it. So it goes.
Like this:
I don’t sell paper.
Posted: December 18, 2011 Filed under: Law | Tags: Law Practice 1 Comment »As an attorney, I provide legal services. Before I began my solo practice, I worked at a law firm. The senior partner at the law firm would occasionally admonish me in the art of lawyering. Often, I agreed with his philosophy of lawyering, but there was one particular area that I did not.
On more than one occasion, he said to me “we sell paper.” He would go on to explain that clients did not understand what we did as lawyers so in order to create value in the client’s mind, we needed to produce lots of paper that they would see. In other words, his philosophy was, “Our client’s don’t know enough to appreciate us, but if they see we are creating lots of paper for them, they will figure we must be doing something and will pay their bill.”
I never liked this philosophy, for a few reasons.
For one, I thought it demonstrated a lack of faith in our clients to understand the value of what we did as lawyers. I believe clients generally walk in the door expecting to value what the lawyer can do for them. Otherwise why would they walk in in the first place? It is the attorney’s job to ensure they walk out the door valuing what the lawyer did for them. How does an attorney ensure this? I believe it has less to do with the amount of paper produced and more to do with results, education, and communication. Certainly, there are many complex legal concepts that are beyond the grasp of most clients, but for the most part it does not take a law degree to understand what a lawyer does.
The biggest reason I did not like this philosophy is that I thought it was ridiculous to embrace a philosophy that I would be embarrassed to share with a client. “Welcome to our law firm, we sell paper.” That is a horrible motto. Would a lawyer ever put “we sell paper” on an advertisement? Of course not. So why think that way? When I began my solo practice, I tossed the “we sell paper” philosophy into the trash. I don’t believe I should have a philosophy that I would not be proud to share with my clients.
Being a lawyer, there is paper involved. Estate plans are on paper. Contracts are on paper. Letters are on paper. Petitions to court are on paper. But I do not sell paper. I provide legal services. I create value for my clients by achieving results for them, communicating the results to them, and educating them to help them understand why it was necessary that they use my services at all.
Copyright 101
Posted: December 14, 2011 Filed under: Law | Tags: Copyright, Entertainment Law, U.S. Constitution Leave a comment »One way to conceive of entertainment law is to think of entertainment law resting upon the twin shoulders of copyright law and commercial law. Today, I am going to give a bird’s-eye-view (pun intended) of copyright law and in a future blog post will address commercial law.
The Founding Fathers saw fit to include in the United States Constitution what has come to be known as the Copyright Clause. In Article I, Section 8 of the Constitution, Congress is granted the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The current Copyright Act is contained in Title 17 of the United States Code. Section 102(a) of the Copyright Act outlines the broad scope of works that are entitled to copyright protection.
By nature, artists create works. Under the law, the works that are afforded copyright protection are those works which are, as Section 102(a) states, “original works of authorship fixed in any tangible medium of expression.” Two of the keywords of this phrase are the words ‘original’ and ‘fixed.’
If you were to take out a piece of paper and write a story, provided you didn’t copy the story from somewhere else, your work (the story) would be provided copyright protection because it was original and now ‘fixed’ on the page. ‘Fixed’ is just another way of saying that the work exists somewhere outside the head of the artist. An idea cannot be copyrighted; only a fixed expression of an original idea can be copyrighted. If the next great american novel or masterpiece of fine art or the next one-hit-wonder resides solely in the head of the artist, there is no copyright protection for it. The work must exist somewhere outside the head of the artist.
When an artist does get the original work out of their head and onto paper/canvas/celluloid/8-track/etc., the artist then holds the copyright to the work. As the copyright holder, the artist holds the “bundle of rights” described in Section 106 of the Copyright Act. This includes the right to (1) reproduce the work, (2) prepare derivative works, (3) distribute the work, (4) publicly perform the work, (5) publicly display the work, and, (6) in the case of sound recordings, publicly perform the work via digital audio transmission.
Creating the work is only part of the challenge of being an artist. Once the work is created, if there is a market for the work, then the artist will have the pleasure of working with book publishers/art galleries/film and TV companies/music companies/etc. to get the work out into the market where it will (fingers crossed) generate revenue so everyone gets paid. It is this leap — taking the work from the artist’s garage (so to speak) and into stream of commerce — that makes commercial law (to be discussed in a future blog post) the other critical aspect of entertainment law.
An ounce of prevention. . .
Posted: December 10, 2011 Filed under: Law | Tags: Ben Franklin, Estate Planning, Probate Leave a comment »An ounce of prevention is worth a pound of cure. (Benjamin Franklin is a goldmine of wisdom)
Someone once asked me what the most important thing was in estate planning. My answer was simply: family that gets along. However, it would be more complete to say: family that gets along and a carefully considered estate plan.
With or without estate planning, if the family gets along this will help considerably in making the estate settlement process easier, even if they have to endure the probate process. Keyword: endure.
However, even when probate is avoided because a trust was established, it is critically important for people to plan their estate in a way that will help minimize conflict in the future. Otherwise, if/when lawyers and courts get involved, conflict = lots of time and money.
I once was involved in a trust dispute that almost any objective observer could have seen coming a mile away. A man and a woman were married, had several children, and built up some wealth together. The kids grew up and the mother passed away. Later, the father remarried a woman with a child so the family now consisted of the father, the second wife, a step-child, and the children from the first marriage. Next, the father passed away and the estate was left to his second wife. For whatever reason, the family trust was set up in a way that named the step-child as the trustee when the second wife passed away. Then the second wife passed away.
The person that creates a trust is referred to as a “settlor.” During the settlor’s lifetime, they commonly act of trustee of their estate. When the settlor passes away, there are successor trustees and beneficiaries to the estate. Even in close families, there is always some tension between the trustees and the beneficiaries because they often have different goals. Trustees have a responsibility to preserve the trust assets and beneficiaries want their portion given to them as soon as possible. This creates tension.
In the situation I described, the tension was escalated by a trust that named the step-child trustee over an estate that the children of the first marriage felt entitled to because the wealth was created primarily during the first marriage. And, oh-by-the-way, the kids never got along very well with their step-sibling to begin with.
Predictably, they continued to not get along when the estate was being settled. Predictably, it ended up in court. Predictably, a lot of time and money was expended that could have been avoided had the family gotten along and had the trust helped minimize the potential for conflict. Instead of setting it up the way they did, the parents could have (1) considered if a different trustee would minimize future conflict among their children, or (2) set up separate trusts (one for the step-child and one for the other children) with separate trustees. Instead, everyone fought it out in court.
Morals of the story: (1) get along, if you can; and (2) an ounce of prevention. . .
