Fong Law Group

知名藝人遽然離世, 突顯資產規劃重要

最近，一位知名藝人的離世震驚了全球華人社群。知名演員大S（徐熙媛）的驟然離世，不僅讓娛樂圈和粉絲震驚，也引發了人們對遺產規劃重要性的討論，特別是在家庭關係和子女監護的層面。

遺產規劃不僅僅是富人的事

許多人認為只有超級富豪才需要進行遺產規劃，但事實上，無論資產多寡，若無妥善規劃，任何遺產——不論大小——都可能成為法律糾紛、財務管理不善以及家庭爭端的中心。大S的離世讓我們看到，婚姻、離婚、生育等重大人生事件都應促使我們重新檢視自身的遺產規劃。

離婚與過時的遺產計劃風險

大S於2010年與商人汪小菲結婚，育有一子一女。然而，兩人在2021年離婚，並因此涉及子女監護權的問題。離婚後，如果沒有及時更新遺產規劃文件，可能會產生嚴重後果。例如：若前配偶仍然是人壽保險或退休帳戶的受益人，他可能會繼承這些資產，而不是其他指定的繼承人。若離婚前所立的遺囑未更新，可能導致前配偶仍然擁有資產的控制權。以我個人經驗為例，我的一位客戶的丈夫去世後，她發現丈夫的保險受益人仍是前妻，因為他在離婚後從未更改受益人，導致保險金最終被前妻繼承。這再次強調了遺產規劃需要與時俱進。

台灣法律對遺產分配的影響

據媒體報導，大S的遺產估值約為新台幣10億元。如果她沒有立遺囑，根據台灣的《繼承法》，她的現任丈夫將繼承一半，剩餘的一半將由兩個孩子繼承。然而，如果她立有遺囑，她則可以自由分配資產，例如將更多的遺產留給子女。此外，大S的現任丈夫具俊曄公開表示，他將放棄繼承權並將其份額轉讓給大S的母親。然而，根據台灣法律，如果他放棄繼承權，他的份額將自動歸於大S的子女，而非其母親。在美國也是如此，繼承人可以放棄繼承權，但無法指定遺產的最終去向。若具俊曄希望大S的母親獲得資產，他需先接受遺產再進行贈與，這將帶來巨額稅務負擔。因此，如果希望資產傳承給父母，應在遺產計劃中明確指定。

子女監護與資產控制權

由於具俊曄並未正式收養大S的兩個孩子，因此汪小菲很可能會獲得孩子的監護權。這將帶來一個重大問題：如果孩子繼承了大S的全部遺產，因未成年無法直接管理財產，監護人（即汪小菲）將代為管理資產。換句話說，大S的前夫將間接掌控她的遺產。如果大S生前立有遺囑，她本可以指定現任丈夫為子女的監護人，確保她的資產由她信任的人管理。然而，在沒有遺囑的情況下，前夫可能會掌握她全部的遺產。正如我在講座中常說的：「如果你沒有遺產計劃，最不希望獲得你財產的人，最終可能會成為財產的掌控者。」

美國與台灣的遺產規劃差異

在美國，如果去世者無遺囑或信託，且沒有合格繼承人，財產將歸政府所有。因此，設立信託至關重要。此外，遺產計劃應包括兩類文件：

生前文件（如財務與醫療授權書）

身後文件（如遺囑與信託）

信託相較於遺囑更具優勢，因為遺囑需經過「遺囑認證」（probate），這是一個漫長且昂貴的法律程序。在加州，遺產認證費用通常約為遺產總價值的4-5%。例如，若房產價值100萬美元，遺產認證費用可能達到5萬美元。此外，法院計算遺產認證費用時，是根據總價值而非淨值。例如，若房產總值100萬美元但仍欠銀行80萬美元貸款，法院仍會以100萬美元計算費用，而非淨值20萬美元。

信託的重要性

使用信託而非遺囑的另一個好處是隱私保護。遺囑屬於公開文件，債權人可透過法院查閱並索賠，而信託則屬私人文件，無需對外公開。此外，遺囑必須經法院批准才能執行，這使其更容易引發爭議，而信託則可直接生效，減少訴訟風險。

遺產規劃應與時俱進

許多人制定遺產計劃後便置之不理，但財務狀況變化、搬遷或家庭結構變動時，應定期檢視和更新遺產計劃，以確保其仍然符合自身意願。

為孩子建立遺產計劃

遺產規劃不僅關乎金錢，還涉及價值觀的傳承。像大S這樣對文化具有影響力的人，可以透過信託確保子女獲得教育資源，並在適當的價值觀引導下成長。她的離世提醒我們，人生無常，應提前規劃，以確保親人能夠得到妥善照顧。

結論

大S的案例強調了遺產規劃的重要性，特別是對於家庭結構較為複雜的人來說，及早規劃不僅能確保資產順利傳承，也能避免不必要的糾紛。透過周全的遺產計劃，每個人都能為摯愛的家人提供保障，確保自己的遺願得以實現。

為什麼每個人都需要一份生前信託來進行遺產規劃

新年是檢視和強化您遺產規劃的最佳時機。而其中一個關鍵是了解為什麼生前信託往往比僅依靠遺囑更好。

為什麼不單單依靠遺囑？

遺囑需要通過遺囑認證程序（Probate），即由法院監督處理遺產的過程。在加州，遺囑認證程序複雜、耗時（通常需要1至2年）且昂貴。遺囑認證費是根據遺產的總價值計算，而非淨價值。例如，如果您擁有一套價值100萬美元的房子，但仍有80萬美元的抵押貸款，那麼費用將基於100萬美元的總價值計算，而不是20萬美元的淨值。這可能導致遺囑認證費高達5萬美元或更多。

此外，遺囑是公開文件，這意味著任何人（包括債權人）都可以查看。遺囑認證法院會通知債權人，使其有優先權申索遺產，從而減少留給受益人的財產。

生前信託的優勢

生前信託可避免遺囑認證，並提供以下好處：

隱私保障： 信託文件不是公開的，債權人或其他人無法查看您的資產細節。

效率高： 信託管理人（受託人）無需法院批准即可分配資產，避免延遲並降低成本。

減少爭議： 與遺囑相比，信託較少引發法律爭議，因為不需要法院審核。

正確資金注入是關鍵

生前信託只有在資產正確注入時才能發揮作用。這意味著需要將資產的所有權（例如不動產、銀行賬戶、商業利益及貴重的個人財產）轉移到信託名下。若未完成此步驟，資產仍需經過遺囑認證，導致信託無法有效運作。

常見的問題

許多人使用在線工具或聘請非律師來設立信託，最後卻發現資產未被正確轉移到信託中。這一疏忽導致不必要的遺囑認證程序，增加成本和分配資產的時間，甚至引發家庭糾紛。一位經驗豐富的遺產規劃律師能確保您的信託得到正確的資產注入。

其他遺產規劃的考量

稅務規劃： 由於聯邦和州法律可能影響遺產，適當的規劃能有效減輕稅務負擔。2025年，聯邦遺產稅免稅額將增加至1,399萬美元。然而，若國會未採取行動，2026年該免稅額可能降至350萬美元，這可能影響到許多加州居民，特別是高房價地區。

受益人更新： 定期更新您在賬戶和保單上的受益人名單，避免將資產留給不想要的人（如前配偶）。

未成年子女的監護權： 確保指定適合的人選作為子女的監護人，以備不時之需。

無行為能力的規劃： 在您的遺產規劃中加入持久授權書（Durable Power of Attorney）和預先醫療指示（Advance Healthcare Directive），以避免在您無行為能力時，家人不得不經過耗時又昂貴的法院程序。

保護您家庭的未來

一份完善的遺產規劃不僅僅是財富轉移，更是確保家庭安全、減少壓力的關鍵。在新年開始之際，與經驗豐富的律師一起檢視您的計劃，確保它符合當前狀況並能有效保護您最重視的事物。

Why Everyone Needs a Living Trust in Estate Planning

The New Year is a perfect time to review and strengthen your estate plan. A critical aspect of this is understanding why a living trust is often a better choice than relying solely on a will.

Why Not a Will Alone?

A will requires probate—a court-supervised process to handle a decedent’s estate. In California, probate is complex, lengthy (1-2 years), and expensive. Probate fees are calculated on the gross value of your estate—not the net value. For example, if you own a $1 million home with $800,000 in mortgage debt, fees are based on $1 million, not the $200,000 equity. This can result in probate fees of $50,000 or more.

Additionally, a will is a public document, meaning anyone—including creditors—can view it. Probate court notifies creditors, giving them first claim on your estate. This transparency can diminish what’s left for your beneficiaries.

The Advantages of a Living Trust

A trust bypasses probate, offering several benefits:

Privacy: Trusts are not public, so creditors and others cannot access your asset details.

Efficiency: A trustee can distribute assets without court approval, avoiding delays and reducing costs.

Minimized Disputes: Unlike wills, trusts are less prone to legal challenges, as they don’t require court approval.

Proper Funding is Key

A living trust only works if it’s properly funded. This means transferring ownership of assets—like real estate, bank accounts, business interests, and valuable personal property—into the trust. Without this step, assets remain subject to probate, rendering the trust ineffective.

Common Pitfalls

Many people use online tools or non-lawyers to set up trusts, only to discover later that assets weren’t transferred properly. This oversight leads to unnecessary probate, increased costs, and potential family disputes. An experienced estate planning attorney can ensure your trust is correctly funded.

Additional Estate Planning Considerations

Tax Planning: With federal and state laws impacting estates, proper planning can mitigate tax burdens. For 2025, the federal estate tax exemption increases to $13.99 million. However, this could drop to $3.5 million in 2026 unless Congress acts, which may affect many Californians given high property values.

Beneficiary Updates: Regularly update beneficiary designations on accounts and policies to prevent unintended inheritances, such as assets going to an ex-spouse.

Guardianship for Minors: Ensure trusted individuals are designated as guardians for your children.

Incapacity Planning: Include a Durable Power of Attorney and Advance Healthcare Directive in your estate plan to avoid costly and time-consuming court proceedings if you become incapacitated.

Protecting Your Family’s Future

A well-structured estate plan is about more than wealth transfer; it’s about ensuring your family’s security and reducing stress during difficult times. Start the New Year by reviewing your plan with an experienced attorney to ensure it reflects your current circumstances and protects what matters most. 

Notarizing Documents for Seniors With a Dementia Diagnosis

An Alzheimer’s or dementia diagnosis can be a challenging journey for the person and family alike. When the diagnosis occurs, a ticking clock begins on the timeline for getting proper and sound notarizations done for crucial legal documents.

What Does It Mean to Get a Document Notarized?

According to the National Notary Association, having a document notarized is a process that ensures the document is authentic. The Notary serves as an impartial screener who confirms the identity, willingness, and awareness of the person signing the document.

There are vital issues and implications to be aware of when having documents notarized for individuals with dementia.

Notarizing for a Person With Dementia: A Legal Gray Area

Having documents notarized for seniors with dementia leads to some legal gray areas. There are no laws that prohibit having documents notarized for individuals with cognitive impairments. However, the role of a Notary Public extends beyond the procedural formalities.

Notarizing documents for anyone who is cognitively impaired also comes with a dramatically increased risk for both fraud and elder abuse. This is an issue that Notaries are highly aware of and protect against.

Notaries must assess whether their document signers understand and are aware of the nature of the documents, their contents, and their details. They also must verify the signer’s identity.

Notaries must screen each signer to ensure they are signing the document willingly. The signer cannot be under the pressure or direction of any third party.

The Notary will refuse to notarize a document if they find that any of these conditions fail to meet the standard.

It’s critical for families to act ethically and responsibly in notarizing important documents for their aging loved ones with dementia. If your loved one is facing a dementia diagnosis, establish legal clarity as soon as possible to avoid uncertainties later.

How to Prep When Having Documents Notarized

The following tips will help you prepare:

• Make sure the Notary visits the signer at a time when they are cognitively aware.
• Arrange for the signer to meet privately with the Notary.
• Confirm what type of notarization you need on specific legal documents. If you need anything clarified, check with your attorney or the document recipient.
• Ensure the signer is prepared to present their identification. They also must be able to sign the document, if necessary, as well as the Notary’s record book. Some states also require a fingerprint impression.
• Ensure there are no blank spaces or dates on the documents. To combat fraud, a Notary will refuse to notarize if required entries are blank.

Legal Documents to Have Notarized for Dementia Diagnosis

Certain legal documents, more commonly notarized for seniors, serve the person’s wishes and protect them from undue influence. Those documents include the following:

Power of Attorney (General vs. Durable)

A power of attorney grants authority to a trusted individual to make financial and legal decisions on behalf of someone else. A general power of attorney is effective immediately. In contrast, a durable power of attorney remains in effect even if the signer becomes unable to handle their affairs.

Health Care Power of Attorney

This document designates a representative to make medical decisions when the individual is unable to do so. You may also hear it referred to as a health care proxy. Notarizing it ensures that all parties will respect the signer’s health care preferences.

Living Will

A living will outlines end-of-life medical preferences. Having it notarized provides assurance that medical choices align with the signer’s wishes.

Guardianship/Conservatorship

In cases where dementia has advanced significantly, establishing a legal guardian or conservator for your loved one. In securing notarized documents, you can ensure that the guardian responsibly manages your loved one’s financial and personal affairs.

Will or Trust

Notarizing a will or trust guarantees the proper distribution of assets after your loved one’s passing, minimizing potential disputes.

HIPAA Release Form

A HIPAA release form grants specific individuals access to the signer’s medical information, aiding health care decisions.

Financial Account Designations

You may also want to ensure that all parties will handle your loved one’s financial matters according to their preferences. To do this, you can work with a Notary to notarize designations on your loved one’s financial accounts.

Act Before It’s Too Late

The absence of specific laws surrounding notarial acts and dementia highlights the importance of being proactive. Waiting until the last moment to have something notarized may lead to legal difficulties or disputes.

As soon as you receive confirmation of your loved one’s dementia diagnosis, initiate the process of having key legal documents notarized. It’s essential you do this while your loved one can still articulate their wishes. This way, you can help protect them while reducing potential family conflicts.

八項內容你不應寫在遺囑或信託內 (廣東話)

 

 

Can A Video be used as A Will?

 

 

識法有方 - 視頻可否當作遺囑? (國語)

 

 

識法有方 – 視頻可否當作遺囑? (粵語)

 

 

Do I Need to Change My Estate Plan Every Time I Move?

What subjects in a will are interchangeable among all states? Is guardianship the same no matter where you live? How about real estate? If I move frequently due to my company, is there anything in my will I know will always be valid or do I have to make changes every time I move? What are the big topics that change when you move?

Due to the full faith and Credit clause of the U.S. Constitution, which reads "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State," your will executed in one state will be honored if you move to another state. So you don't have to get a new will every time you move. This is also true of revocable trusts; they will be honored in all states.

This is less true of durable powers of attorney and health care directives. While they should be honored from state to state, sometimes banks, medical professionals, and financial and health care institutions don't accept documents and forms with which they are not familiar. In addition, for some purposes the execution requirements may be different. You ask about real estate. Some states require witnesses on durable powers of attorney and others don't. A state requiring witnesses may not allow a power of attorney without them to be used to convey real estate even though the document is perfectly valid in the state in which it was executed.

What are Some Common Mistakes in Titling Real Property?

“Unlike personal property, real property–such as real estate or automobiles–is titled to convey ownership.”

Title to real property must be transferred, when the asset is sold and must be cleared (free of liens or encumbrances) for the transfer to occur. Unlike other real property assets, real estate ownership can take several forms. Each of these forms has implications on how ownership can be transferred and can affect how they can be financed, improved or used as collateral.

Investopedia’s article, “5 Common Methods of Holding Titles on Real Property,” looks at the ways in which to hold title to real estate property.

Joint Tenancy. This is when two or more people hold title to real estate jointly, with equal rights to enjoy the property during their lives. When one dies, their rights of ownership pass to the surviving tenant(s). The parties in the ownership need not be married or related, but any financing or use of the property for financial gain must be approved by all parties and cannot be transferred by will after one passes. Another disadvantage is that a creditor with a legal judgment to collect a debt from one of the owners, can also petition the court to divide the property and force a sale in order to collect on the judgment.

Tenancy In Common. In this situation, two or more persons hold title to real estate jointly with equal rights to enjoy the property during their lives. However, unlike joint tenancy, tenants in common hold title individually for their respective part of the property and can dispose of or encumber as they chose. Ownership can be willed to other parties, and in the event of death, ownership will transfer to that owner's heirs undivided. An owner can use the wealth created by their portion of the property, as collateral for financial transactions, and creditors can place liens only against one owner's specific portion of the property. Any liens must be cleared for a total transfer of ownership to take place.

Tenants by Entirety. This can only be used, when the owners are legally married. This is ownership in real estate under the assumption that the couple is one person for legal purposes. The title transfers to the other in entirety, if one of the couple dies. The advantage is that no legal action is required at the death of a spouse. There’s no need for a will, and probate or other legal action isn't necessary. Conveyance of the property must be done in total, and the property can’t be subdivided. In the case of divorce, the property converts to a tenancy in common, and one owner can transfer ownership of their respective part of the property to whomever they want.

Sole Ownership. This is ownership by an individual or entity legally capable of holding title. The main advantage to holding title as a sole owner, is the ease with which transactions can be accomplished, since no other party needs to authorize the transaction. The disadvantage is the potential for legal issues regarding the transfer of ownership, if the sole owner dies or become incapacitated. Unless there’s a will, the transfer of ownership upon death can be an issue.

Community Property. This form of ownership is by husband and wife during their marriage for property they intend to own together. Under community property, either spouse has the right to dispose of one half of the property or will it to another party. Anyone who’s lived with another person as a common-law spouse and doesn't specifically change title to the property as sole ownership (which is legally transacted with approval by the significant other) takes the risk of having to share ownership of the property, in the absence of a legal marriage.

Community Property With the Right of Survivorship. This is a way for married couples to hold title to property. However, it is only available in Arizona, California, Nevada, Texas, and Wisconsin. It lets one spouse's interest in community-property assets pass probate-free to the surviving spouse, in the event of death.

Entities other than individuals can hold title to real estate in its entirety. Ownership in real estate can be done as a corporation. The legal entity is a company owned by shareholders but regarded under the law as having an existence separate from those shareholders. Real estate can also be owned as a partnership, which is an association of two or more people to carry on business for profit as co-owners. Real estate also can be owned by a trust. These legal entities own the properties and are managed by a trustee on behalf of the beneficiaries. There are many benefits, such as managerial influence, financial and legal liability and tax considerations.

Reference: Investopedia (April 10, 2018) “5 Common Methods of Holding Titles on Real Property”