Frequently Asked Questions
WHAT IS ESTATE PLANNING?
Estate Planning is the process of creating a set of legal instructions that dictate what will happen to you and your estate once you are incapacitated and after death. It applies to both financial and medical decisions. Estate planning is not only for wealthy people with large savings and property holdings, an estate merely means anything that a person possesses. Estate planning allows you to decide what sort of care you want should you become incapacitated or upon death, in addition to who will receive your possessions, or who will take care of any minor children or dependents once you are no longer able to give care.
WHAT HAPPENS IF YOU DIE WITHOUT A WILL?
Dying without a will is called “dying intestate.” When this happens the estate is referred to Probate Court, and the Court will decide how to make distributions according to the State’s intestacy laws. This often includes protections for minor children and spousal rights to distribution.
WHAT DOES A WILL DO?
First and foremost, a Will provides for the desired disposition of your property upon death. Beyond this, a Will can nominate a guardian for minor children, you can appoint a personal representative to execute the Will which may eliminate the need for court supervision of the settlement of the Estate, and you can leave possessions to those who are left out of settlements under intestacy laws like stepchildren, godchildren, friends or charities.
WHAT DOES A WILL NOT DO?
A Will cannot transfer assets that by-law would not benefit your estate upon death. For example, property owned with rights of survivorship would pass to the surviving owner.
WHAT IS A REVOCABLE LIVING TRUST?
A Revocable Living Trust or RLT is a Trust created during your lifetime which you have the freedom to amend. You may appoint an initial Trustee, often yourself, who governs the property held in the Trust until death, upon which the predetermined Successor Trustee takes over.
WHAT IS A POWER OF ATTORNEY?
A Power of Attorney gives one or more persons the power to act on your behalf, beginning and ending at a predetermined event (upon incapacity) or for a limited reason (to sell a vehicle on your behalf).
WHAT KINDS OF POWERS SHOULD I GIVE MY AGENT?
Beyond day-to-day finances, your agent can be given the power to maintain and administer your Trust. In some states, the Agent has the power to retitle and transfer assets to your Trust. They can also administer gifts to beneficiaries on your behalf.
WHAT IF I MOVE?
If you move to a new state, it is important that you review the state-specific laws that may affect your estate planning documents. Your documents will still be in effect, but there are nuances of state-specific law that should be addressed through a review of your documents.
WILL MY POWER OF ATTORNEY EXPIRE?
A “Durable Power of Attorney” does not expire, and allows for lifetime appointment (unless you revoke it). However, it is important that you continue to review your choice of agent to ensure that they are still the best person to act on your behalf should you become incapacitated.
WHY HAVE HEALTH DIRECTIVES?
A Health Care Directive gives you the ability to outline what sort of medical care you would like should you become incapacitated, and to appoint someone to speak on your behalf if you are unable to communicate with medical professionals. This is especially important at the end of your life, but could apply to any accident or illness that occurs during your lifetime. Without directives, loved ones may need to obtain court orders to implement your medical wishes, elongating decision making and putting more stress on the people making decisions for you. Directives are also preferred by physicians because it gives clear written instructions on your medical preferences without them having to get a group consensus that may or may not reflect your actual wishes.
WHAT IS PROBATE?
Probate is the legal process by which a deceased person’s estate passes through a court system to determine how to distribute their assets (how much goes to whom).
SHOULD YOU AVOID PROBATE?
Probate laws are different state-to-state. For example, California is known for its mandated attorney fees that are higher than in other states. Probate can take up to two years depending on the complexity of the estate. Smaller estates with less assets and fewer heirs can be more streamlined, but either way, there are many documents and reports to file with the Court, which can be rejected if not executed correctly, thus delaying the whole process. If the deceased has a complete estate plan with a Living Trust, the estate may still pass through Probate if not every asset was re-titled and transferred to the Trust. However, the Trust eliminates the need for a lengthy court investigation into the existing assets, and helps avoid confusion over beneficiaries and extensive Court fees.