Wills, Durable Powers of Attorney and Advance Health Care Directives
A Will or Last Will and Testament is a legal declaration by which a person, the Testator, names one or more persons to manage his or her estate, and provides for the distribution of his or her property at death.
The estates of those who pass away without a Will, will be required to go through the expensive and time-consuming probate process, unless the value of their probatable estate is less than $150,000. Because there is no Will or Trust, the beneficiaries of the estate will be those determined by the State of California under the law of Intestate Succession.
The estate of those who have established a Will as the basis of their plan (meaning, that they do not have a Living Trust), will also be subject to the probate process, as described above, however, the beneficiaries of the estate will be those persons and/or entities as set forth in the Will.
Those who have established a Living Trust as the basis of their plan, will still have a Will, but the type of Will used with a trust-based plan is called a Pourover Will. A Pourover Will names your executors, just like a standard Will, however, the beneficiary of your Pourover Will is your Living Trust. This provides for the uniform administration of your estate when you pass away.
Durable Powers of Attorney
A Durable Power of Attorney is a legal document that gives someone you choose the power to act in your place. In case you ever become mentally incapacitated, youll need what are known as durable powers of attorney, so that your agent can assist you without having to initiate an expensive court procedure (e.g. a conservatorship).
The Durable Power of Attorney is one of the most important documents of your comprehensive estate plan, even for those who have a Living Trust, for although the Successor Trustee of your Living Trust can step in and manage your trust property in the event that you cannot do so yourself, there are many other issues which arise outside of the purview of your Living Trust.
For example, you may have qualified accounts which cannot be transferred to your trust (e.g. IRAs, 401(k)s, etc.); you may need someone to sign a document on your behalf; or you may need someone to assist in protecting your assets in the event that you have extremely high medical or long-term care costs. Your agent under your Power of Attorney will be a crucial part of your overall management and asset protection plan.
Remember, that if something needs to be done to protect you or your estate, and you either do not have a plan, or your plan is not comprehensive enough to accomplish the needed task, an expensive court procedure would need to be established to authorize someone to assist you. It has been our experience that our comprehensive and flexible estate planning documents have eliminated the need for this expensive procedure, and at the same time, made sure that your wishes would be carried out in accordance with your stated objectives, by someone of your choosing, rather than someone appointed by a court.
And please remember, all Durable Powers of Attorney are not the same. It has been our experience that most, just like most Living Trusts drafted today, are one-size-fits-all computer generated documents. They routinely lack certain important provisions, the absence of which could cause you and your loved ones severe problems. A custom-drafted, comprehensive Durable Power of Attorney is an essential part of your overall estate plan.
Advance Health Care Directives
Generally, an Advance Health Care Directive is a document under which you give instructions about your own health care; you name someone else to make health care decisions for you, in the event that you cannot make them yourself; and you set forth your wishes regarding the administration of life support in the event that you are, for example, in a coma or persistent vegetative state. As with the other documents we have discussed, the Advance Health Care Directive is an extremely important component of your overall estate plan.
Please be advised that the information on this site is not meant to be construed as legal advice. If you need legal advice, or for more information about creating or evaluating a Living Trust, our Orange County Living Trust Attorney can help you. Please contact our office at (562) 594-4200 for a FREE 30-minute consultation.