Widening your gaze and considering the people in your life, instead of just your assets, will help you to create a more well-rounded estate plan. Stripped down to its core purpose, estate planning is the determination of how your interests will be taken care of when the time comes that you are no longer cognizant, usually due to either incapacity or death. While no one enjoys sitting around and thinking about the day they shuffle off this mortal coil, are you really going to leave your family to sift through your responsibilities without the benefit your input? Even worse still is that if you choose to neglect to set your personal affairs in order, the state government will most likely be the one to make those decisions for you.
Advance Health Care Directives
Advance health care directives are a legally binding, written set of directives that let other people know what your wishes and expectations are in terms of your health care should the day ever come when you are unable to do this for yourself. Advance health care directives usually cover the following things:
- Designation of Health Care Representative – You designate someone whom you trust to adhere to your wants, make decisions, and exercise good judgment on your behalf in case you ever find that you are incapable of doing so yourself.
- Living Will – This document lets other people know your expectations regarding how your end of life medical care is to be managed.
- Anatomical Donations – You leave specific instructions as to what you would like done in the event that you choose to donate any of your internal organs upon your death.
Power of Attorney
The power of attorney is a legally binding form on which you formally select another person to act in your capacity. If, under any set of circumstances, you become incapacitated, filing a durable power of attorney will enable your chosen person to act on your behalf in matters regarding your medical care and your finances. There are other forms of power of attorney but they automatically cease when the person who made them becomes incapacitated.
Whomever you designate to act in this capacity can be given powers to act in as extensive a manner as you wish, but in their basest form, the powers should include at least the following:
- The ability to oversee and sell off your assets;
- The ability to design or revise trusts on your behalf;
- The ability to pay your taxes and handle the IRS; and
- The ability to make gifts.
A last will is a legal document that establishes who you would like to be given guardianship over your minor children and the manner in which you want your assets allocated following your death. The last will also designates an executor of that will. The job of an executor is to oversee and assist in the delegation of your will throughout the probate proceedings.
Should you die with no valid will having been made, an act known as dying intestate, then all of your earthly treasures will be split up and their ownership transferred according to the interests of the State.
Trusts are a legal construct which enables you to designate another person to be legally allowed to hold your assets, called a trustee. A trustee is given the legal titles to whatever property is being put into the trust, but they have a legal obligation to make decisions for the good of the beneficiaries, not themselves. Revocable living trusts are implemented and financed throughout your lifetime.
You often appoint yourself as trustee to secure power over the assets until your incapacity or your death. A testamentary trust is formed through a stipulation in your will, following your death. Trusts are very adaptable and cover a wide range of situations. The type of trust that would best be suited to your needs is going to be determined by your individual interests and goals.
Probate is the legal procedure of filing the will with the court so that it can be validated. The process of probate includes verifying the legitimacy of the will, paying off any debts that were owed by the deceased, and allocating the assets of the deceased as indicated in their will or, in the event that there is no will, as stated by California law.
Certain assets are not required to go through probate, such as:
- Annuity contracts and life insurance policies with a clearly designated beneficiary;
- Legitimate gifts given prior to death;
- Property that is held in joint tenancy with clear rights of survivorship;
- IRAs and retirement plans that have a clearly designated beneficiary; and
- Assets being held in living trusts.
If you feel like your knowledge of estate planning leaves a lot to be desired, or you are still unclear on what exactly is involved in the process, or where you should begin, then it is strongly suggested that you reach out to experienced probate and estate planning lawyer in California. If you are interested in meeting with a probate and estate planning attorney for a free, no-obligation consultation concerning your last will and testament, then please reach out to the team here at Levia Law Firm by calling (818) 703-1777 today.