Estate Planning
If you still need to plan your estate, more likely than not, your home and most of your assets will be subject to probate (court procedure) and legal fees when you pass on. Even if you did set up your estate the right way, but time has passed or things have changed, your beneficiaries may still need to receive all or any of what you had intended to be given to them.
If you Have Not Yet Created an Estate Plan
If you own a home or have more than $150,000 in assets, there is much to be lost, not just for your heirs but for you. In the event of an extended hospital or nursing home stay, the nursing home and government will likely give you incomplete information and misinformation about your duty to “spend down” your liquid assets to qualify for the Long Term Care (Medi-Cal) Insurance you have already paid for.
Many people have, in effect, squandered their life savings and their property in this way, only to regain enough of their health to return to living on their own and having nothing to come back to—their home and assets gone! But it doesn’t have to be this way. With the proper strategy, you can protect yourself from such misfortune.
If Your Estate Plan Is Five or More Years Old
Tax laws have changed. If there’s been a divorce in your family, or someone in your existing estate has passed on or just left the area, you may need to update your plan. Also, are the addresses and phone numbers of your successor trustee(s) listed in your trust still correct, or has someone moved? In either case, we are here to help you.
What Is Estate Planning?
When someone passes away, his or her property must somehow pass to another person, charity, or other entity. In the United States, any competent adult has the right to choose how his or her assets are distributed after passing. (The main exception to this general rule involves a spousal right of election, which disallows the complete disinheritance of a spouse in most states.)
A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs as well as to coordinate what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event of death or disability.
On the personal side, a good estate plan should include directions to carry out your wishes regarding health care matters so that if you ever are unable to give the directions yourself, someone you know and trust would do that for you and know when you would want them to authorize extraordinary measures and when you would prefer they pull the plug.
Why Is It Important to Establish an Estate Plan?
Sadly, many families don’t do proper estate planning because they don’t believe that they have “a lot of assets” or otherwise believe that their kids can just come in and divide their assets by themselves. If you don’t make proper legal arrangements for managing your assets and affairs after your passing, the state’s intestacy laws will take over upon your death or incapacity. This often results in the wrong people getting your assets as well as higher estate taxes, along with unnecessary court and legal fees.
If you leave without establishing an estate plan, your estate will undergo probate, a public, court-supervised proceeding. Probate can be expensive and tie up the deceased’s assets for a prolonged period before beneficiaries can receive them. Even worse, failure to outline your intentions through proper estate planning can tear apart your family as each person maneuvers to be appointed with the authority to manage your affairs. Further, it is not unusual for bitter family feuds to ensue over modest sums of money or a family heirloom.
What Does My Estate Include?
Your estate is simply everything that you own, anywhere in the world, including:
- Your home or any other real estate that you own
- Any interests you may have in any business
- Your share of any joint accounts
- The full value of your retirement accounts
- Any life insurance policies that you own
- Any property owned by a trust over which you have significant control
How Do I Name a Guardian for My Children?
If you have children under eighteen, you should designate a person or persons to be appointed guardian(s) over their person and property. Of course, if a surviving parent lives with the minor children (and has custody over them), he or she automatically remains their sole guardian.
This is true even though others may be named as the guardian in your estate planning documents. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court.
What Estate Planning Documents Should I Have?
A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling that considers your particular family and financial situation:
A living trust can hold legal title and provide a mechanism to manage your property. You (and your spouse) are the trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions as you have provided in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your living trust is “revocable,” which allows you to make changes and even terminate it. One of the great benefits of a properly funded living trust is that it will avoid or minimize the expense, delays, and publicity associated with probate. Read the FAQ section on Living Trust for more information.
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If you have a living trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be outlined in a will or another document. The other major function of a pour-over will is to allow the executor to transfer any assets the decedent owns into the decedent’s trust so that they are distributed according to its terms.
A will, also referred to as a “last will and testament,” is primarily designed to transfer your assets according to your wishes.
A will also typically name someone you select as your executor, the person you designate to execute your instructions. If you have minor children, you should also name a guardian and alternate guardians in case your first choice is unable or unwilling to serve. A will is only effective upon your death and after a probate court admits it.
A “durable power of attorney for property” allows you to carry on your financial affairs if you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled. This guardianship process is time-consuming, expensive, emotionally draining, and often costs thousands of dollars.
There are generally two types of durable powers of attorney: a “present” durable power of attorney in which the power is immediately transferred to your attorney in fact, and a “springing” or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. When you appoint another individual to make financial decisions on your behalf, that individual is called an “attorney.” Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or a friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.
The law allows you to appoint someone you trust, for example, a family member or close friend, to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care,” now commonly called an “Advance Directive.” Where you designate the person or persons to make such decisions on your behalf, you can allow your healthcare agent to decide about all healthcare or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that healthcare professionals follow your wishes. Hospitals, doctors, and other healthcare providers must follow your agent’s decisions as if they were yours.
Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, because the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA Authorization Form that allows the release of medical information to your agents, your successor trustees, your family, and other people you designate.
