What To Do When You’ve Been Disinherited?

I have been contacted on multiple occasions by prospective clients who learned after a loved one’s death that they would inherit nothing from the deceased person (decedent). This can be a very painful discovery, particularly if the decedent and the prospect were spouses or close family members. Not surprisingly, the prospect wants to inherit what they feel they are owed. So, what to do when you’ve been disinherited?

It’s important to remember that the government does not recognize a legal right to an inheritance. As a general rule, a person can leave their estate to whoever they want. If they wish to disinherit their child or donate to the Nazi Party, they are free to do so, and the government will uphold their wishes. There are some limited exceptions to this rule.

  1. The omitted child/spouse rule. The government assumes that you want to leave your estate to your spouse and children, unless you have a will or trust that says otherwise. So, if you get married or have a child after creating a will and trust, it’s assumed that you would have included them had they existed at the time the estate plan was created. This rule extends to children who were born before the will and trust were created, but the parent (*cough* father *cough*) wasn’t aware of their existence until after they had completed the estate plan. If the child can show the court that their parent wasn’t aware of their existence at the time they created their will and trust, and would have included them if the parent had known about them, the court will give them a share of the estate. The same rule holds for a surviving spouse who wasn’t married to the decedent at the time their will and trust were created. However, if the will and trust specifically state that the decedent is intentionally disinheriting the child or spouse, then this option won’t work.
  2. Fraud. The court will not uphold a will or trust if it can be proven that the will or trust is fraudulent. Classic examples are forged signatures or altering the contents of the document after it’s been signed. There are experts whose entire job is to spot this sort of activity on legal documents. It’s also why it’s so important to have the original; fraud is much harder to spot on a copy.
  3. Undue influence. If the decedent was pressured into signing the estate plan and it does not actually reflect their wishes, the court will not uphold it. Undue influence can be difficult to prove, so you would need to gather quite a bit of evidence to convince the court that this is what happened. Please see my previous article for more information on undue influence and how to spot it while there’s still time to act.
  4. Lack of capacity. A person has to have legal capacity in order to sign a will and trust. If they are not of sound mind, then they can’t be trusted to understand what they are signing or what the impact of those documents will be. As with undue influence, lack of capacity can be difficult to prove, so if you don’t have a doctor’s evaluation, you’ll have to gather evidence that the decedent did not have the mental ability to understand what they were doing. Please see my previous article for more information on lack of capacity and how to spot it.

These are the major reasons a court will accept for overturning a will or trust. While there are some other possible arguments out there, it will be much more difficult to succeed if you can’t prove one of the above.

If you have questions or would like more information about what to do when you’ve been disinherited, please contact me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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Can I Reverse-Engineer this Design?

My sister inspired this blog article when she noticed a trend in the knitting world.  She saw several social media posts where knitters saw a design they liked, reverse-engineered it, and then gave away the pattern or offered it for sale. She asked me about the legality of this practice, and it reminded me of stories I heard from marketing teams, where they would copy pictures or artwork off the Internet. Then, if someone pointed out this was problematic, they would recreate the design themselves and declare it non-infringing.

Unfortunately, this is not how copyright works. Copyright law protects a work from being copied without permission; the fact that the picture or design is on the Internet does not mean it is free for anyone to use. Copyright also protects against the creation of derivative works, which are works that are based on the original. Even if you change some details (or a lot of details), drawing a recreation of an existing work qualifies as a derivative work and therefore infringes on the original’s copyright. The same holds true if you simply modify or crop an existing picture.

So does this mean you can never use an existing work? Not necessarily. Here are some times when you might be okay:

  1. The work is not copyrighted. If it doesn’t have a copyright, then your use is not infringing. Older works (pre-1927) and certain government works (e.g. Hubbell telescope photos) are not protected by copyright and can be freely used.
  2. You have permission. While it can be challenging to reach out and ask for permission, many sites let you use or modify photos and art with a blanket subscription or, in some cases, for free (just make sure the site got permission from the author first). Search browsers also have filters that will only show photos that have been licensed for reuse.
  3. Fair use applies. This one is the trickiest and the most risky. Certain uses (e.g. education, news reporting or commentary) are presumably fair use, but that’s not a guarantee that your specific use is okay. A good rule of thumb is asking, “Will this hurt the original’s sales?” While this is not the only factor the courts will consider, it is an important one, and will also impact the likelihood of the copyright owner coming after you. Another option is to change it so drastically that it’s not really comparable to the original, but this move is a lot riskier and the lower courts are less likely to rule in your favor.

When in doubt, it’s best to either get permission (in writing) or have a lawyer run a risk analysis for you. It’s not worth the potential lawsuit to just assume that you’ll be okay.

If you have questions, want to know, “Can I reverse-engineer this design?”, or if you just want to know if your use is okay, don’t hesitate to contact me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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Estate Administration Basics: What to Do After a Loved One Dies

Estate Administration Basics: What To Do After a Loved One Dies

Losing a loved one is one of the most emotional times a person can go through. Dealing with their material possessions (i.e. the estate) shouldn’t be an additional burden, but it frequently is. Most people have no idea where to begin the process of sorting through accounts and belongings.

When I meet with clients regarding estate issues, I have a checklist that I go through with them. The following list isn’t everything I go over, but it will give you some important steps to consider:

  1. First things first. Some things need to be taken care of immediately, with the most obvious example being pets. Pets should not be left alone in an empty house. Someone needs to make sure they are taken to a new home, and that they don’t go hungry in the meantime. You should also notify Social Security and any other income source that stops on death – any payment received after death will need to be returned.
  2. Find the will and trust. The next priority is finding the will and/or trust if the person had them. These documents tell everyone who is in charge, so little can be done without them. They will also tell everyone what should happen to the estate, which will make life easier for whoever is in charge.
  3. Update the title on the assets. Dead people can’t own anything, so the person in charge will have to change the name on the bank accounts, real property, and other assets the person owned. This is pretty straightforward if there is a will and trust; without these, the title can only be changed with an Affidavit of Small Estate (if the estate is worth less than $180,000) or with Letters of Administration from the Probate Court (if the estate is worth more than $180,000).
  4. Pay off bills, debts, and the IRS. Nothing can be distributed until all debts are paid. This includes the government, which still wants whatever taxes are owed to be paid on time. However, the final income tax return can be submitted up to nine months after the date of death.
  5. Distribute assets. This process is fairly simple with a will and trust – you simply follow the directions given in the documents. Without these, assets will go to the deceased person’s legal heirs, as determined by the Probate Code. In addition, if the estate is going through probate, you’ll need permission from the Probate Court before making any distributions.

My checklist is a bit longer and more detailed, but this gives you a 50,000-foot overview of the process of what to do after a loved one dies. If you would like a more thorough overview or have questions about an estate, please feel free to email me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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When Should I Register My Trademark?

When Should I Register My Trademark?

Before jumping into the details of trademark registration, it’s important to remember what a trademark is and why having one is important.

A trademark serves as a source identifier in the marketplace, so buyers know who they’re buying from and sellers can build a reputation that makes people want to buy from them. Anything that serves as a source identifier can be a trademark. Common examples are company names, product names, logos, and slogans.

Since the purpose of a trademark is to act as a source identifier for goods and services, the U.S. Patent and Trademark Office wants to see proof that you are actually using the mark in the marketplace. It is possible to “reserve” a mark before you start selling, but you have to pay an extra fee, and you only get a limited window before you have to show that you’ve started selling. With these restrictions, it doesn’t make a lot of sense to register before you open a business unless you’re very concerned about infringers wanting to copy your mark. Another possible reason to register early is that you want to attract investors, who will be more interested in your company if you can show a portfolio of assets that you have exclusive rights to.

The next logical time to register your trademark would be when you first open your doors. While there is nothing wrong with registering at this point, I personally feel that, unless one of the above reasons applies to you, there may be better uses for your limited funds. Trademark registration is quite expensive, and while it gives you added security, it’s not going to improve your bottom line. In addition, infringers tend to want to copy trademarks that already have a good reputation in the marketplace, so the odds of a deliberate infringer are low when you’re getting started (and, if you were creative enough with your mark, the odds of unintentional infringers are also low).

So, when should you register your trademark? I feel that the best time to register is after you’ve started making money and have established a reputation in the marketplace. At that point you have something worth protecting, and you have the funds to give it that protection. The exact timeline for this will vary from business to business.

If you would like to learn more about when you should register a trademark, or if you would like to discuss the timing of your trademark registration, please feel free to email me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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What’s the Difference Between Libel and Slander?

I see a lot of confusion regarding defamation, libel, and slander. People usually know the terms are related, but they’re not sure how or what they actually mean. Let me break it down.

Defamation is the spreading of false facts (i.e. lies, but lying sounds bad, so we’ll stick with “false facts”). Spoken defamation is called slander, and written defamation is called libel. So if you spread false facts in conversation, you’ve committed slander. If you publish them in a book, you’ve committed libel. Both qualify as defamation.

But that’s not enough content for a blog article, so let’s go a step further. If you’re an author (or songwriter, movie creator, etc.), how do you protect yourself from a defamation claim?

The first step is to go back to the definition of defamation – spreading false facts. If the fact is not false, then it’s automatically not defamation, and the person’s claim gets booted out of court so hard it bounces down the courthouse steps. Of course, you must prove that the fact is true, so it’s a good idea to collect and preserve any evidence that backs up your facts. Even if it turns out your fact is false, you can still show that you did your due diligence and believed it to be true, which can also get you out of a defamation judgment.

On the flip side, if what you said/wrote is not actually a fact, that will also stop a claim in its tracks – it must be presented as a fact in order for defamation to apply. Opinions are not facts; therefore, they cannot be defamatory. But you need to be careful here – it’s not enough to simply add “I think” to your sentence, it must clearly be an opinion. For example, if you say, “I think my neighbor buys drugs at 9 pm every Friday from the drug dealer on the corner of Baker and Peach Street,” it’s not likely people will think that’s an opinion.

Of course, these are just defenses you can bring up in the event of a lawsuit. If you want to avoid the lawsuit entirely (and still keep the objectionable content), the best thing you can do is to hide the identity of the person you’re talking about. Defamation is only actionable if it harms a person’s reputation; if no one knows who you’re talking about, then the person’s reputation hasn’t been harmed. More importantly, if the person in question doesn’t recognize themselves, then they won’t try to bring a lawsuit in the first place. It’s not a guarantee, but it does lower the risk.

And if all else fails, put the project on a shelf until the person you’re worried about dies. Only the person who has been defamed can bring a defamation lawsuit; once they die there is no one who can bring a lawsuit for them. So you can say whatever nasty things about Hitler you want, no one is going to come after you.

If you would like to know more about defamation, or you would like a lawyer to review your content for possible issues, please reach out to me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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What’s the Difference Between Joint Tenancy and Community Property?

Most of my estate planning clients own property, so I see a lot of Grant Deeds. Sometimes a married couple owns property as community property, and sometimes they own property as joint tenants. I’ve had several clients tell me they have no idea what the difference is between joint tenancy and community property, and they just picked the option their realtor recommended. Let me explain the difference and how it affects your ownership rights.

Community property is property that spouses share equally together. Everything a married person acquires during marriage (including their paycheck) is community property – the only exceptions are gifts, inheritances, and things acquired using separate property money. When a married person dies, all community property automatically goes to the surviving spouse. In a divorce, all community property is evenly split between the spouses. If a married person has debts, creditors can use community property assets to pay off the debt.

Joint tenancy is a little different, and it’s not just because you don’t have to be married to be joint tenants. If property is held in joint tenancy, the parties still hold equal ownership shares, but each party’s share is considered their separate property. This won’t change anything on death – the deceased joint tenant’s share still goes to the surviving joint tenant(s). But it does make a difference in divorce and bankruptcy cases. In these cases, soon-to-be ex-spouses and creditors are limited in what they can access. With divorcing spouses, the soon-to-be ex-spouse can only access their share of the joint tenancy property, not your share. And creditors could only access the debtor’s share of the property, not the share(s) belonging to the other joint tenant(s).

So is joint tenancy the better way to go? Not necessarily. A recent California Supreme Court case, In Re Brace, strongly suggests that spouses can’t take title as joint tenants unless they sign a statement that expressly makes the property separate property. Even if a married couple takes title as joint tenants, it’s still assumed to be community property unless that signed statement can be produced.

To summarize, community property and joint tenancy both involve holding equal ownership shares in property, but they will be treated differently in the event of a divorce or bankruptcy proceeding. Courts will assume that the couple intended it to be community property, even if the Grant Deed says joint tenancy, so it’s better to call it community property to avoid confusion. If a couple really wants it to be a joint tenancy, they’ll need to sign a statement confirming their intent.

If you have any questions about the above, or if you would like to talk to me about how you hold title to your property, you’re welcome to reach out to me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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Key Items in an Author Illustrator Contract

Author-Illustrator Contracts

Most people who write a book that requires illustrations (such as children’s or botanical books) aren’t artists. When self-publishing their book, these authors will need to hire someone themselves to create the necessary artwork. They may hire the artist just to design the cover, or they may ask for illustrations for every page. Either way, it’s a good idea to have a contract spelling out exactly what the artist will produce and how much they will be paid.

There are many examples of author-illustrator contracts, and they can vary widely, but here are the key things to look for when you hire an illustrator:

  1. Who owns the copyright? This is extremely important, as the copyright owner has all the rights to the work, and the other person only has the rights the owner chooses to give them. If you hire someone for just one project, then under copyright law the illustrator will own the copyright. If you want to be the copyright owner, then the words “work for hire” must appear in the contract (see my previous article on the work for hire doctrine). This is the only way you can be considered the owner when you hire someone to create something for you. It is also helpful to explicitly state the name of the owner. For example, “’X’ is considered the author and owner of the copyright under copyright law.” While this level of detail isn’t required, it does make it very clear what the intentions of the parties are.
  2. What rights does the other party have? No matter who owns the copyright, the contract should state what the other party can and cannot do with the artwork. If the illustrator is the owner, then the author must be able to use the artwork in their book, marketing, advertising, etc. If the author is the owner, then the illustrator doesn’t need to have any rights per se, but they often like to have the artwork in their portfolio as examples of their prior work. You should discuss the various scenarios with your illustrator and decide together what works best for both parties. Then make sure the final decision is incorporated into the contract.
  3. How will the illustrator be paid? If you hire the illustrator just to do the cover, or a few illustrated pages here and there, you will likely pay them a flat or hourly fee, worked out in advance. If they’re doing a lot of artwork (such as illustrating a picture book for children), then you can either pay them a fee or give them a percentage of your royalties. Most of the time, the illustrator will want the fee so they can get paid and move on to the next project. Either way, you want the contract to state how and when the illustrator will be paid so there’s no confusion in the future.
  4. What is the timeline for the illustrator to complete the work? Clear communication is essential to ensure that expectations are met, and the project is completed on a timely basis. Even if you aren’t in a hurry, it’s still a good idea to have a due date, so you’re not wondering in six months what’s going on with that book project (or on the flip side, you won’t feel the need to nag the illustrator every five minutes if you know it’s not due for another week).
  5. Will the work be original? In most cases, if you’re hiring an illustrator then you want them to make something new for you; you don’t want them to recycle content they made for someone else (and you don’t want them to use your content for someone else either). While this shouldn’t have to be stated, it’s not a perfect world and it’s better to simply have it spelled out. While you’re at it, the illustrator should also promise that what they create won’t infringe on anyone’s copyright or otherwise cause people to sue you.

The contract can certainly cover more than these five points, but it shouldn’t cover less. If you have questions about your contract, or you want some help putting a contract together, please feel free to email me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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Estate Planning Consultation Checklist: Three things to do before you meet with an attorney

Many of my prospective clients ask me what they need to do or bring before their estate planning consultation. While it’s certainly acceptable to simply walk into an attorney’s office without any advance preparation (for me anyway; I can’t speak for other attorneys), it can be very helpful to think about the following:

  1. Determine your financial worth. The first step in the estate planning process is to determine the overall value of your estate (i.e. everything you own in your name). Your net worth is a huge factor in deciding what documents you need. If all you have is an old car and a few hundred dollars in the bank, you probably don’t need a trust. If you’re a billionaire, you probably need multiple trusts. For the purposes of estate planning, a general idea is usually sufficient for an attorney to figure out what documents you need. It saves time to figure out your financial worth before meeting with your attorney. However, you can bring your financial documents with you and figure this out during the meeting.
  2. Figure out your family’s needs. Once you know your net worth, you should think about your family’s situation and what specific issues would need to be addressed if something happened to you. If you have young children, you should think about who would raise them. If you have a spouse who doesn’t earn a paycheck, you should make sure there’s enough money to take care of them until they figure out their next step. If you own a business, you should think about what would happen to the business after you’re gone. An attorney can help you figure these things out, but it’s a good idea to at least know before you arrive what issues need to be addressed.
  3. Decide who will be in charge. This is often the most difficult decision for clients, and it’s one that the attorney can’t really help you with. For the sake of speeding up the process, you should have an idea of who you want to name before you see an attorney. This should be someone you can trust to carry out your wishes, and for the financial documents, it should also be someone good at managing money. If there is no one you can trust, the attorney will likely have professionals they can refer for this task.

Thinking about these three things will make the consultation go more smoothly, and it will speed up the process of determining how to shape the plan to meet your needs. If you have questions about the above or would like to schedule a consultation, please feel free to email me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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Dealing with Foreign Assets – What Do I Do With My Non-U.S. Property?

Now and again, I get a client who owns property in a foreign country. Unsurprisingly, they want to know how to incorporate this property into their estate plan successfully. Since every country has a different set of laws, and some countries may not recognize a U.S. will or trust, this is a tricky situation to deal with. If you’re lucky, you may be able to find an attorney familiar with the laws of both countries, but this magical lawyer is often hard to find. Absent that, here are a couple of approaches to dealing with foreign assets:

The first approach is to have one estate plan for your U.S. assets and another estate plan for your foreign assets. Each estate plan should be drafted by an attorney familiar with the laws of that country. This approach guarantees that your wishes will be honored in each country where you own property, and you don’t have to worry about foreign laws or taxes causing problems for your beneficiaries. The downside is that it’s more complicated than just having one plan. For example, you need to be careful that one plan doesn’t override the other, and you want to make sure your attorneys consider international tax issues, not just the tax issues for their country.

The second approach is to use an international will. An international will has more requirements than a regular will, but following these requirements will ensure that your will is honored in foreign countries. This is a bit easier than having two estate plans, but it’s important to remember that this will only work if the foreign country signed the treaty that set out the requirements for international wills. If the country your property is located in did not sign this treaty, and your will does not meet that country’s requirements for a valid will, then they may choose not to honor it. At this time, only 13 countries have signed this treaty, so an international will is only of limited use.

There are other options out there, but these two are the most common and, in my opinion, the easiest to implement. If you have questions about dealing with foreign assets,  international wills, or having multiple estate plans, please feel free to reach out at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

 

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Seven Things to Know About the Copyright Small Claims Court

The Copyright Small Claims Court is Now Open!  It’s been a long time coming, but the Copyright Claims Board is finally up and running, and copyright owners with small claims can now file them for consideration.

For those who missed my previous article on the subject, Congress passed a law in 2020 allowing the Copyright Office to create a small claims court. The purpose of the Copyright Small Claims Court is to help copyright owners who either can’t afford the expense of a full lawsuit or whose claims are so small it’s not worth the time and expense of a trial. Here’s what you need to know about how it works:

  1. Attorneys are not required. The system is user-friendly, so while attorneys are allowed, you don’t have to have an attorney to participate.
  2. All proceedings are online. No travel is required to have your case heard, and the process of submitting evidence is much more streamlined than in a formal court case.
  3. Monetary damages are capped at $30,000. Again, this is a small claims court. Even if you win, the amount of money you can be awarded is limited.
  4. Participation is voluntary. This could be the biggest drawback of the system – both parties have to agree to participate for the Copyright Claims Board to hear the case. If you file a claim and the other party refuses to participate or doesn’t respond, then your claim will not be heard, and you’ll have to go to federal court.
  5. The Board will only hear certain types of claims. The point is to resolve copyright disputes, which is all the Copyright Claims Board will rule on. If you have an infringement case, want them to decide if an activity would be infringing, or wish to dispute a DMCA take-down notice, then this is the right place for you. If you have additional grievances against the other party, you may want to consider filing in federal court.
  6. You can’t file the same case in federal court before the Copyright Claims Board. The point is for this to be an alternative to federal court. You can’t have your cake and eat it too – you have to choose one. You could switch from a federal case to the Copyright Claims Board, or vice versa, while proceedings are ongoing, but you can’t have both cases going at the same time. Once a decision has been made in one system, you can’t hop over to the other system in hopes of getting a better ruling.
  7. Options to appeal are limited. To keep things simple, once the Copyright Claims Board makes a decision, the decision is final. Therefore, they do not offer an appeals process. The only time they will reconsider is if you can show that there was a clear error of law or fact that affected the outcome of the case.

For more information, please see my previous article here, or look at the Copyright Claims Board website at https://ccb.gov/

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

 

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