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National Make-A-Will Month

National Make-a-Will Month

I read recently that August is National Make-A-Will Month, so I wanted to take this opportunity to explain will and their function to you..

A gallup poll revealed that only about half of all Americans have a will. Making a will is an important part of planning for your family’s future. Before diving too deep into the purpose of a will, let us first talk about the purpose and anatomy of a will.

What is a Will?

National Make-A-Will Month

National Make-A-Will Month

A will is a document that states a person’s last wishes. Wills are usually have to be recorded with the County where the testator aka maker of the will passed away. Some states, including California have requirements for what should be included in a will. There are also different types of wills. For example, a handwritten will is called a holographic will. A holographic will is also not witnessed by anyone and are often held to be invalid.

 

What Makes a Will valid?

California has a set of laws that govern all things surrounding estates, from wills to living trusts to probate after the death of a person. These laws together make up the Probate Code. The Probate Code lists out the requirements for a will to be valid. Some of the requirements are that a will needs to be signed by the testator. It also needs to be witnessed by two adults at the same time who saw the testator sign the will and understand that the document the testator signed in a will. Sections 6110 through 61

13 lay out the requirements of a valid will in detail.

Purpose of Making a Will

When someone passes away in California and has property worth less than One Hundred and Fifty Thousand ($150,000), a will essentially serves as an affidavit. The beneficiaries in the will of a deceased person can usually go through a simplified probate process to gain access to the property in that estate.

If however, the deceased person owns property worth over One Hundred and Fifty Thousand Dollars ($150,000), then the will can be a “pour over will” that pours the smaller contents of a person’s estate into their living trust. Without a living trust an estate greater than $150, 000 may still need to go through probate despite having a will.

A Will and Trust Work Together

In California, when someone owns property worth over the One Hundred and Fifty Thousand Dollars ($150,000) threshold, one of the ways to avoid probate is to create a Revocable Inter Vivos Trust which can hold a person or family’s estate during their lifetime, and can seamlessly pass on the property held within the trust to their beneficiaries afterwards. A will can act alongside a Trust to ensure that the items in a person’s estate that are worth under $150,000 pass through a person’s trust.

This National Make-a-Will Month, I invite you to contact us and set up a free consultation to talk about how a will, and maybe a living trust can help protect your family’s future. We have convenient locations in Long Beach and Irvine. You can reach us at (949) 346-5294 or aastha@madaanlaw.com.

 


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MONEY, MONEY, MONEY & POWER OF ATTORNEY

stack of moneyWhile different individuals have different purposes for creating an estate plan, one of the most common purposes is to ensure that they can use their assets in time of need.  A Power of Attorney is a document that gives one or more persons the right to act on your behalf if you are unable to do, and is usually part of a comprehensive estate plan.

A Power of Attorney allows you to give as much or as little authority to your agents as you wish. The authority can range from the limited right of your agents to pay your bills, to a sweeping authority for your agents to be able to make any and all financial decisions.  Due to the scope of authorities that can be granted by a financial Power of Attorney, you must choose your agent carefully. Often, people choose a family member or close friend to be their agent, but you can choose anyone you trust with your financial decisions. If you are creating a Revocable Trust, it is prudent to keep in mind the ways in which a Power of Attorney can act in conjunction with, and also fill the gaps remaining from the Trust.

A Power of Attorney can be ‘springing,’ which means it becomes effective upon a triggering date or event, such as if you ever become incapacitated, or unable to make decisions for yourself.  You also have the option of creating a Durable Power of Attorney, which becomes active immediately and continues to remain active upon incapacity. This type of power of attorney is often used by individuals that need their agents to have authority to make financial decisions if they are abroad or otherwise unavailable to make their own financial decisions. A power of attorney expires at the time of the creator’s death.

Spouses can create a common Revocable Trust, but the powers granted in a Financial Power of Attorney are personal to each individual, and need to be separate for each spouse.

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Solving the Mystery of Health Care Decisions as a Part of Your Estate Plan

Doctor with patient

A comprehensive estate plan should allow you to account for unexpected situations, including health care emergencies. The most common concern is if someone becomes unable to make competent decisions or care for oneself, and has not made arrangements in advance, who has the authority to make health care decisions for that person? There is a mechanism by which a court can appoint court-supervised conservator to manage your health care, be responsible for your care, and make health care decisions on your behalf.

 

Conservatorships have several benefits and drawbacks.  In certain cases, a conservatorship might be needed, and it is important to document a choice of conservator should that circumstance arise. However, the process of conservatorship can generally be avoided through a document called Advance Health Care Directive that allows you to name “attorney-in-fact” or “healthcare agents.”

 

Advance Health Care Directives (AHCD), also known as “Living Will” or “Health Care Power of Attorney’’ are a vital part of a comprehensive estate plan. An Advance Health Care Directive allows you to designate one or more persons to make health care decisions, if you are unable to do so yourself. You can also include your wishes for important health care decisions, such as life-sustaining treatment, instructions regarding specific medical treatments, or any medical treatments that you wish to withhold, organ donations, and dispositions of remains after death. Advance Health Care Directives are especially important if you have limited family members, or have very specific preferences for medical decisions.

 

If you are young and healthy, and feel that your choice of health care agents may change, it is helpful to keep in mind that you can revoke or amend your Advance Health Care DirectiveAn attorney can draft an Advance Health Care Directive for you, and can advise you about sharing the AHCD with your agents, alternate agents, doctors, family members etc

 

For specific questions regarding health care directives, please feel free to call us at (949) 486-6612.

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Common Misconceptions About Estate Planning-Part III

Part Three of a three part series

This is the final part of a Three Part series intended to address the misconceptions I hear most often while advising clients about estate planning. This blog will clarify some of the misconceptions and myths, but for any others “facts” about estate planning you may have heard, please call an estate planning attorney or attend one of our presentations.

Misconception. Paying an Attorney To Make a Trust is Expensive

Truth. Like any other service provided by a professional, the price of creating an estate plan will vary from one attorney to another.  Most attorneys will create a simple trust with a few properties and accounts for a reasonable price. If you find that you are unable to afford the price, ask if the law office will work out a payment plan with you or give you a discount. Keep in mind that once your property enters probate, it will be bound by the statutory fees that are fixed by the government, so your estate may very well end up paying much more if it has to go through probate, than what you would pay to an attorney to create a trust for you.

Misconception. It Is Complicated To Maintain A Trust

Truth. While funding your trust is an important step, it is not very complicated. When you first form a trust, you will have to visit the banks where you hold accounts and transfer those to your trust. You will need to transfer your properties into your trust via deeds. Once your initial transfers are complete, you can simply open any future accounts, insurance policies, and pensions under the trust name. The attorney that forms your trust can likely assist you with the initial transfers for a nominal fee.

Misconception.  I Can Copy My Friend’s Trust and Do It Myself Or Have An Online Service Create A Trust For Me

Truth. A Trust is an agreement and roadmap to your future wishes and desires, and a vehicle to ensure that you and your children can easily access your hard-earned assets. Each family is different, their needs, assets, and hopes for future generations are different. An online service or copying a pre-made trust that is not customized to your family’s needs and desires may get the job done, but will not provide you the benefits, flexibility and accuracy that an attorney can. As mentioned in the previous post, when you meet with an attorney, she will most likely create a complete estate plan that anticipates any future needs and emergency circumstances within your family, including a trust, health care documents, and financial documents, which an attorney can assist with on a case-by-case basis.

For any other questions you have about estate planning, please contact our office!


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Common Misconceptions About Estate Planning-Part II

Part Two of a three part series

This is Part Two of a Three Part series intended to address the misconceptions I hear most often while advising clients about estate planning. This blog will clarify some of the misconceptions and myths, but for any others “facts” about estate planning you may have heard, please call an estate planning attorney or attend one of our presentations.

Misconception. People Only Form Living Trusts For Tax Purposes.

Truth. While some families are concerned about estate taxes that may be imposed on their estate (and therefore, children) after the last spouse passes away, most create Living Trusts to avoid probate.  Probate is the legal process through which courts ensure that after your passing, your debts are paid, and your assets are distributed to your family.  Creating and funding a trust ensures that your children or other loved ones you leave behind do not have to engage in the process of probate.  While there are a lot of other benefits, and yes, a Trust can have tax-related consequences and benefits, an estate plan’s primary purpose for middle-class families is usually to avoid probate and ensure continuity of care and use of assets for family members.

Misconception. I Have A Trust That Is Signed and Notarized. I Don’t Need To Do Anything Further.

Truth. A Trust, in and of itself, does not protect all your assets from going into probate. In order to avoid probate, you must continue to fund your trust. This means informing your bank and other asset-holders that you have formed a Trust and need to put assets into your Trust. If you have real property, you will need to transfer the ownership to the Trust as well. While your Trust is active, you need to continue to fund your Trust when you open new accounts or acquire major assets. An estate planning attorney can further advise you about this.

Misconception.  We Do Not Have Children Or Anyone Else to Leave Our Assets To, So We Do Not Need an Estate Plan.

Truth.  If you have worked hard for your life-earnings and savings, it makes sense that you should do with it as you please, even after you are no longer able to use it personally. You can make sure your pets are taken care of after you pass, or you can leave your assets to one or more charities. There are countless options for you to ensure your assets are used according to your wishes and instructions. However, a good estate plan encompasses all aspects of your life, not only your assets. As a part of a comprehensive estate plan, your attorney can create Health Care Directives, Powers of Attorneys and other documents for you. An estate planning attorney can discuss your options with you on a case-by-case basis.

 

This is Part Two of a three-part series. Stay tuned for Part Three, which will be published on this page by March 10th, 2015.


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Common Misconceptions About Estate Planning

Part One of a three part series

When I meet individuals and families to discuss their estate planning needs, I often hear misconceptions and misunderstood facts. This blog will clarify some of the misconceptions and myths, but for any others “facts” about estate planning you may have heard, please call an estate planning attorney or attend one of our presentations.

Misconception. Young Couples Can Not Benefit From An Estate Plan.

Truth. Young couples with assets and children can in fact benefit from an estate plan. A well drafted estate plan, especially a trust can ensure that your children are taken care of, should something happen to you. You can appoint people that you trust to manage your property, and nominate guardians for your children. Estate Planning is especially useful when you have young children so you can ensure that your wishes, desires and legacy pass on to them if you are not around.

Misconception. I Have A Will So My Family Is Protected.

Truth. A Will does in fact allow a person to name executors after their death. However, if your property exceeds are certain dollar amount in the State of California, your executors may have to file for Probate, which is a court-supervised process for transferring assets to the beneficiaries listed in one’s will. Not only can Probate be expensive, but it also takes time, during which your beneficiaries may be unable to use your assets. And if you are incapacitated, a will cannot be used to ascertain your desires, nor can it be used by your family members to access your assets. A durable power of attorney for property management can be used in such circumstances.

Misconception. My Husband/Wife And I Have Joint Accounts And Community Property Ownership Instead of Having An Estate Plan.

Truth. Joint ownership is a good idea and works well if something happens to one of two partners. However, if both spouses pass away, or one becomes incapacitated, joint ownership cannot stand in lieu of having an estate plan. In certain situations, courts may appoint a conservator to manage your assets if you are incapacitated or not competent to make financial decisions. A well-crafted estate plan allows you to nominate a conservator that you trust.

This is Part One of a three-part series. Stay tuned for Part Two, which will be published on this page on February 25th, 2015 and Part Three, which will be published on this page on March 4th, 2015.


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