Estate planning is an important, but often overlooked, component of your life's plan. Why is it overlooked? Well, for one, it is unpleasant to think about dying or potentially becoming incapacitated. Another reason is that people think you have to be rich or have children for family planning to help...not true. A third reason is because it doesn't feel as though there is an imminent need. "I'll do it later." "That won't happen to me." However, life does happen...and unexpectedly. Many people think a family plan consists primarily of a will. However, there are other important family planning documents, such as an Advance Health Care Directive, a Durable Power of Attorney, and a Nomination of Guardians for Minor Children. Essentially, family planning includes the following: How to pass your assets and debts when you pass, appointing someone to care for your minor children if you are no longer able to do so, authorizing someone to make decisions for your health if you become incapacitated, and authorizing someone to make decisions regarding your finances and estate if you become incapacitated.
Currently, Ginter Family Law only assists with the preparation of the documents shown to be available on this page. Ginter Family Law does not assist with other estate planning and administration services, including, but not limited to, probate, will contests, trust administration or tax planning.
A Will is an estate planning tool that appoints someone (commonly called an executor) to pass your assets to the person and/or entities of your choice. If you fail to do this, your belongings will be passed along according to California state law, called "intestate succession." Your assets, both real (i.e., a family house) and personal (i.e., household furnishings, jewelry, cars, art collections, etc.) likely resulted from hard work on your part throughout your life. You owe it to yourself to ensure that your property gets disbursed in a manner that you want.
Durable Power of Attorney for Assets
A Durable Power of Attorney for Assets is an important estate planning tool. It cannot be overemphasized enough how important it is to create a Durable Power of Attorney for Assets now. Essentially, a Durable Power of Attorney for Assets provides authority to another person regarding your financial affairs. Let's say you have a parent who is facing dementia, Alzeimer's, or some other incapacitating disease. If your parent signed a Durable Power of Attorney for Assets giving you the authority, you can do the following for your ailing parent: pay bills, manage his or her financial affairs, receive mail, enter into contracts, or even sell your parent's house! As you can see, a Durable Power of Attorney for Assets is invaluable whereincapacityis involved. But, incapacity is not the only use...
Let's say you are married. Your spouse is leaving the area for a while to tend to older parents or maybe is on a business triop. You are trying to sell your house. You now have a problem because the bank will require you and your spouse to sign documents. In comes a Durable Power of Attorney for Assets! A Durable Power of Attorney for Assets signed by your spouse can authorize you to sign on his or her behalf while your spouse is away.
Regardless of your situation, everyone should have a Durable Power of Attorney for Assets. Incapacity is rarely planned (i.e., a car accident, dementia, etc.). And, if you do not have a Durable Power of Attorney for Assets in place before incapacity, a very expensive and grueling alternative through the court system may be your only choice, such as a conservatorship. Finally, a person must have capacity at the time the Durable Power of Attorney for Assets is signed. So, once your parent or someone else becomes advanced in an incapaciting disease, such as Alzeimer's or dementia, it will too late to obtain a Durable Power of Attorney for Assets if the person no longer has capacity. Rest easy and get a Durable Power of Attorney for Assets in place now before it is too late.
Advance Health Care Directive
Sometimes referred to as a "Power of Attorney for Healthcare," an Advanced Health Care Directive is a document that allows you to name others to make decisions regarding your health once you are incapacitated. A Durable Power of Attorney for Assets appoints someone to make decisions regarding your finances and your property; an Advance Health Care Directive allows someone to make decisions regarding your person.
Powers that you can give to someone under an Advance Health Care Directive include the following: (i) decisions regarding your personal care, (ii) authorizing medical treatment, (iii) signing medical documents, (iv) receiving medical information, (v) incurring expenses and hiring medical professionals, (vi) taking actions after your death, and (vii) seeking help from the Court.
As you can see from the powers that you can give to someone, it can be very problematic if you become incapacitated and you do NOT have an Advance Health Care Directive in place. Incapacity is not planned and can rarely be foreseen, such as a car accident or dementia of a senior citizen. Having an Advance Health Care Directive in place now will give you the peace of mind that someone else can follow through with your health care wishes should you become incapacitated later.
Simple Revocable Transfer on Death Deed
A Simple Revocable Transfer on Death Deed can be a very simple and cost effective estate planning tool to avoid a long and expensive probate over certain real property, including a single family residence. This new estate planning tool became effective in California on January 1, 2016. With a Simple Revocable Transfer on Death Deed, a piece of real property can potentially pass to a named beneficiary without the need to go through probate.
Nomination of Conservator
A Nomination of Conservator names one or more persons to make decisions regarding your person and/or your property in the event you become incapacitated. In the usual estate planning situation for a single person or a married couple, it is prudent to have an Advance Health Care Directive, a Durable Power of Attorney for Assets, and a Nomination of Conservator. It is common for one or more of these forms to be needed and used in such a person's lifetime.
Sometimes, an Advance Health Care Directive may be insufficient to give medical providers the comfort they need to share relevant medical information about you. This is especially true if the document does not specifically authorize such access, or if the medical personnel insist it is not effective until you are incapacitated. This form gives the person named full access to all HIPAA protected information without being named as an agent or having to prove the incapacity of the principal.
Community Property Declaration
A Community Property Declaration confirms that a married couple's certain property is community property, even though title may be held in joint tenancy, in the name of only one spouse, or in some other way. Sometimes it may be advisable for spouses to sign a Community Property Declaration to take advantage of the a step-up in tax basis on the death of the first spouse to die.
Nomination of Guardians for Minor Children
A Nomination of Guardians for Minor Children names people (i.e., guardians) that will take care of your minor children in the event you die or become incapacitated. This form is paricularly handy when a guardian is not a family member. Guardians may be close personal friends, people with similar education and background, etc. A nominated guardian will be given priority if there is no surviving parent.
Although a nomination of guardians may be made in a will, we recommend, instead, naming guardians in a separate document: First, selecting guardians is often one of the more difficult questions for a couple with small children. Not infrequently, their inability to agree upon a guardian will cause them to delay signing their Wills.
Second, couples frequently change their minds as to who should serve as guardian for their children. As their children grow, the family develops different relationships, and the best choice for a guardian often changes, usually more frequently than other items in a Will (especially a Pour-over Will). It makes little sense to execute new Wills or Codicils simply to name new guardians.
Third, Wills usually are not considered effective unless and until they are submitted to probate. One of the main reasons in using a pour-over will and living trust is to avoid the probate of the Will. Again, it makes little sense to name guardians in a document you hope will never be used.
Finally, the Nomination of Guardians for Minor Children we generate goes well beyond the inadequate language included in most Wills, which simply says that the testator nominates a person to serve as guardian. In our form, we add additional directions concerning matters important to you as a parent. Done thoughtfully, the Nomination of Guardians for Minor Children may be longer than a Pour-over Will, and, therefore, should stand alone as its own document.
Revocable Living Trust
Also known as a "Revocable Inter Vivos Trust," one of the main reasons to consider a Living Trust is to avoid the long expensive court process called "probate." Probate is a process that occurs when you die with or without a will, where a court will assist dispersing your property to others. Probate is usually takes months or years to complete, and it is typically expensive. With a Living Trust, your property gets passed on without going through the probate process, and property is dispersed according to your instructions in the Living Trust. It is common to also have a "Pour-over Will" drafted with your Living Trust, which can "pour over" additional property into your Living Trust when you die. Finally, it is also usually advisable to also draft a Durable Power of Attorney for Assets and an Advance Health Care Directive to round out a basic estate plan.
A Pour-Over Will is a common estate planning tool that is used in conjunction with a Living Trust and offers a powerful combination to help avoid the expensive and time-consuming process of probate. A Pour-Over Will simply "pours" assets into your trust upon your death.