Wills & Trusts – Burns the Attorney, Inc.

April 5, 2023April 5, 2023

Life Happens

There is an old saying that life happens while you’re busy making other plans. I have found this to be profoundly true, generally. It’s a good Buddhist reminder to stay present, but it’s even better at reminding us that no matter how carefully we plan our lives, things will arise that will demand our attention, no matter what plans we have made otherwise. I am currently experiencing one of those moments.

For some time, years actually, I’ve been having some minor medical issues that I have been ascribing to aging and how our bodies are imperfect. Things would flare up now and again and I would treat myself better, then things would go back to a relative normal. Until a few months ago when the things got much more annoying. No amount of breathing, stretching, changes in diet, meditation, laying off running, etc., were working. The pain was ratcheting up and my sleep was getting disturbed, even more than the usual caused by our animals in bed. I virtually never take so much as an Advil, and suddenly I was taking them on the regular. My quality of life took a slow nosedive and, finally, I ended up at my doc’s office. He sent me for a surgical consultation; and, well, next week, I will be getting surgery.

It’s outpatient, but still kind of gnarly and I’m not looking forward to the immediate post-op recovery phase. I don’t like taking meds generally and certainly not strong pain meds which, by all accounts, I will need. I don’t like being reliant on others, not being permitted to drive, and not being permitted to work (pain meds and lawyering do not mix!). But the procedures have a very high success rate, the pain meds will be a short-term thing (hopefully only a couple/few days), and, once fully recovered (which will take time), I should be good as new.

So, what does this have to do with lawyering besides the fact that I will have to take a few days off? Well, not to be morbid but there is a teeny chance I could never wake up or something could go wrong and I, like the cobbler’s son, didn’t have proper shoes. That is, like most of us, I didn’t have some very important legal things taken care of.

I have had my will, a durable power of attorney, and a medical power of attorney completed and sitting on my desk for more than 6 months, waiting to be executed. In California, all of these docs need to be signed in front of and attested to by two disinterested witnesses (that is, people who have no financial incentive like being an inheritor) and it was a minor hassle to get that accomplished. So, the docs just sat there on my desk, waiting to be executed. This impending procedure got me off my ass and, last week, I called two neighbors who agreed to be my witnesses and executed the docs.

Now, like I said, it is very unlikely that any of those docs will be needed soon, but I can go into my procedure knowing that my chosen person will be able to make decisions, if necessary, rather than having a certain pushy relative try to step in and do, most likely, exactly not what I would want; and that my assets won’t go to anyone I don’t want to get them. I can now, generally, sleep at night knowing that I won’t be making my loved ones’ lives more difficult if I get incapacitated or die at any time.

Far too many of us haven’t made plans for our incapacity or death, and we really need to. It’s terrible to love someone and not be able to do what they want, because you don’t have the legal authority. Worse yet, imagine being subject to the medical decisions of your QAnon-kool-aid-drinking parent or sibling because you’re not legally married (making that spouse probably legally able to step in) or you don’t have a proper doc naming a person you trust! Yikes!

So, if you don’t have all your docs in order, including updating them if you have new kids or a new partner since previous drafting, do it now. Trust me, you’ll sleep better.

March 23, 2022

Don’t Forget to Transfer Your Copyrights Into Your Trust

If you have a trust, especially for estate planning purposes, have you transferred your copyrights into that trust? Remember, copyrights are descendible assets, meaning they go to your heir(s) when you die. But, if you don’t put them in your trust, they may end up in the hands of someone you didn’t want to get them.

Allow me to back up a bit. …copyrights, in the USA, last for 70 years after the death of the (human, non-entity) author/creator. They exist at the moment of creation—when the work is created, the copyright automatically exists. Registration provides extra protection, particularly in the form of additional remedies for infringement but, even without registration, the asset (the copyright in a work) exists when the work is created and lasts 70 years after the artist’s death. So, just like any other asset, you need to pick who gets yours when you leave this life.

Many people have revocable trusts created to ease the transfer of assets after death. Briefly, these trusts are changeable throughout your life (hence “revocable”) and hold the assets in the trust for the benefit of the beneficiary who is, while you’re alive, you (or if it is with your spouse, both of you). When you die, the trust becomes irrevocable and the beneficiary/ies get the assets included in the trust, as per its terms. Trusts avoid probate and, thus, get the assets to the beneficiaries much more quickly and easily than a traditional will (which, by the way, is still much better than nothing!!).

Sadly for creatives, many trust and estate lawyers don’t know even to ask about copyrights when it comes to your assets. In that situation, those otherwise competent lawyers may not advise you properly about transferring your copyrights to your trust. No formal transfer and the copyrights will not go to whomever you actually wanted to get them.

A trust, even your own trust, is not you; so, just like you have to transfer a car title to put the car in your trust, so must you transfer the title (so to speak) in your copyrights. Transferring a copyright requires a signed writing to be valid. That is, the current owner of the copyright(s) has to sign (and yes, it can be electronically) a document that explicitly says that she/he/they is/are transferring ownership to a new owner.

I recently worked with a client’s trust attorney to do exactly that—draft the documentation needed to get those copyrights into the new trust. Luckily, both the client and the other attorney were wise enough to ask about copyrights when it came to the list of assets to be included in the trust; and I was more than happy to help out with that paperwork. Make sure that, if you decide to go the trust route for your estate, you don’t miss out on transferring your copyrights, too. It may be a bit of additional cost, but it shouldn’t be much and your beneficiaries will thank you for it, later.

March 1, 2022

Long Time No See

You may have noticed that I haven’t posted in a while; in almost a year, to be more accurate. I have no excuse other than this: I’m human and it’s been a hell of a year, or two.

We all have had a hell of a year, or two.

Professionally, during this time, the most important thing has been my clients. That is, I have been putting all my work energies into taking care of their business, their cases, their needs. My clients will always be my priority when it comes to my professional life; and 2021 ended up being a successful year for many of their matters, happily. But, when they were taken care of, I found I had to devote my energy to taking care of myself and my loved ones. Things like blogging about the law took a lower position.

Life in the pandemic made everything quotidian much more difficult, turning things like the previous quick runs to the grocery into a bigger, rarer shopping trip, with masks and (at first) gloves and long lines. Everyone had to deal with that, of course. We added in the rearing a Blue Heeler puppy, which is joyful and frustrating in ping-ponging measures, and a general time suck, and totally worth it.

Mongo Santamaria with Ruth Bader Catzburg

At home, we had the unexpected COVID-related death of my boyfriend’s father and trying to help plan his military burial months later when COVID restrictions permitted. Sadly, he left virtually no specific instructions as to his wishes, despite having a decent estate plan otherwise. I mention the last not to speak ill of the dead but rather, wearing my lawyer’s hat, to ask you to not be like that—please leave instructions in your estate plan for what you want/don’t want for your funeral/memorial—your family will be greatly relieved. On the other side, when someone you love dies, please follow the instructions of the executor (or a lawyer, especially if there is no trust/will) rather than going off on your own and trying to, say, sell their car before the title has been correctly transferred or giving away the deceased’s personal items, even if you think it would be helpful. Yes, we had to deal with that happening, too.

Anyway, whether it was general life stuff or the dog or family or the estate stuff or work, the mental load was more arduous than the physical. Again, this is true for everyone. Also, the political situation here in the USA has added to general stress, and now we’re facing an aggressive Russia, invading Ukraine, for extra yikes.

So, while I wish I had been better about blogging here, I will say I’m not beating myself up too much about it. I learned shortly after I started law school that taking a step back to make sure that you are taking care of yourself is important. That can mean saying “no” to more things than you expect to or changing your priorities as your life changes. It’s okay to not do everything, in fact, it’s likely better to do less to do it well.

I hope you each take the time to look at what really matters in your life now and set your priories based on that. Be proud of what you have accomplished, especially if you have managed to stay in business during the pandemic, but don’t let your business be the only thing that matters. Be there for your loved ones rather than pushing for that extra buck, too.

All that being said, I hope to step up and be more active here in the coming days and months. Since my mentor Carolyn Wright shut down her PhotoAttorney blog (to enjoy a well-earned retirement), I feel the need to step into the gap as much as I can.

December 17, 2018December 17, 2018

Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration is not that hard anyway, particularly for visual artists and even more so for still photographers.
- Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights.
Pursue infringements. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K. How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
- Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
- Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver. And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
- Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
- Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.