Estate Planning Lawyer in Riverside, California
Wills, Trusts, Powers of Attorney, and Health Care Documents
There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. When new clients speak with me, they often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to California’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the California’s estate plan with your own.
Not sure where to start?
Estate planning begins with a few practical decisions about the people and property that matter to you.
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Your Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
- A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an “admission ticket” to probate.
- A will is a good place to nominate the guardians (or back-up parents) of your minor children if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle royal, and your children could end up with the wrong guardians.
Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, Special Needs Trusts, etc.
Trusts come in many “flavors,” they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary).
Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Or they may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
Powers of Attorney
A power of attorney is a legal document authorizing another person, called an agent, to act on your behalf in financial and legal matters. The authority granted can be broad or limited to particular transactions. An ordinary power of attorney may terminate if the person who created it becomes incapacitated, while a durable power of attorney is designed to remain effective despite incapacity. A durable power of attorney is therefore an important part of an estate plan because it allows a trusted person to manage financial matters if you are unable to do so yourself. Powers of attorney should be reviewed periodically to make sure the document, the person selected as agent, and the powers granted continue to reflect your circumstances and wishes.
Health Care Documents (or Advance Directives)
Health care planning allows you to designate who will make medical decisions for you if you are unable to make or communicate those decisions yourself and to provide guidance concerning the care you would want to receive.
California law provides a statutory Advance Health Care Directive, which may be used to appoint a health care agent and provide instructions concerning health care decisions. Many California estate plans use this form or a customized advance health care directive to address these matters.
Our estate plans generally address health care planning through three separate but coordinated documents: a health care power of attorney, which designates the person authorized to make health care decisions; a living will, which addresses wishes concerning end-of-life care and life-prolonging treatment; and a HIPAA authorization, which authorizes designated individuals to obtain protected medical information.
Whether these matters are addressed in a single advance health care directive or in separate documents, the objective is the same: to make your wishes clear and give the people you trust the legal authority and information they may need if you cannot speak for yourself.
Ready to Put Your Estate Plan in Place?
A well-designed estate plan can provide clarity for you and the people you care about. The Law Office of Maureen Lyons, PC helps individuals and families throughout California create estate plans tailored to their circumstances, priorities, and goals.