A well thought out estate plan can accomplish a variety of inter-connected goals. Along with ensuring that your estate assets are distributed according to your wishes after you are gone, your estate plan can also do things such as plan for the possibility of incapacity, provide for minor children in your absence, and protect assets from all kinds of potential threats. Given the unique nature of estate planning, no two estate plans will be exactly the same. Nevertheless, there are some common tools and strategies found in the average estate plan. The Riverside estate planning lawyers at Sandoval Legacy Group, A Professional Law Corporation discuss five documents that should be in every estate plan.
- Last Will and Testament. A Last Will and Testament serves as the foundation of most estate plans. Executing a Will ensures that you will not leave behind an intestate estate. Dying intestate means the probate court, and thus the State of California, decides what happens to your estate assets using the California intestate succession laws. Instead, your Will allows you to make specific and/or general gifts to loved ones. In addition, your Will lets you appoint someone as the Executor of your estate. The Executor is responsible for overseeing the administration of your estate. Finally, your Will offers you the only opportunity you have to officially nominate a Guardian for your minor child should one ever be needed. Although you may eventually expand your estate plan, your Will should never be completely eliminated.
- Trust Agreement. Trusts are routinely found in the average estate plan because of the flexible nature of a trust. A trust is a relationship where property is held by one party for the benefit of another party. A trust is created by the owner, also called a “Trustor,” “Settlor,”or “Grantor” who transfers property to a Trustee. The Trustee holds that property for the trust’s beneficiaries. Trusts are broadly divided into two categories, testamentary and living trusts. A testamentary trust does not activate until after the death of the Trustor whereas a living trust takes effect as soon as all the trust agreement is in place and the trust is funded. A living trust can be further divided into revocable and irrevocable living trusts. A trust can help achieve a wide variety of estate planning goals and can even serve as the foundation of your estate plan if probate avoidance is desirable.
- Advance Directive. There may come a time in your life when you cannot make health care decisions for yourself because of your own incapacity. Advance directives help you plan for that possibility. The State of California recognizes the following types of health care documents:
- Power of Attorney for Health Care – this lets you name someone as your “Agent” to make decisions about your health care if you are unable to make them yourself.
- Individual Instructions – this is California’s “Living Will.” It allows you to give specific instructions about any aspect of your health care, such as your wishes with regard to the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief.
- Do Not Resuscitate (DNR) – this form applies prior to admission to a hospital and instructs EMS personnel to forgo resuscitation attempts in the event of your cardiopulmonary arrest.
- Physicians Orders for Life-Sustaining Treatment (POLST) — this form, which is an order and completed by your doctor, physician’s assistant or nurse practitioner, is used for patients with a serious illness or whose life expectancy is a year or less. It orders a plan of care reflecting your wishes concerning medical treatment and interventions at life’s end. Specifically, it allows you to decide to receive life-sustaining treatment or to be given comfort measures only. It should accompany you wherever you are being transferred to for care — hospital, skilled nursing facility, rehab hospital or other health care facility.
- In California, most estate planning lawyers will combine the Power of Attorney for Health Care and Living Will into a single document known as an Advance Health Care Directive (AHCD). The California legislature just made a new Advance Health Care Directive effective January 1, 2019. An AHCD executed before January 1 is still effective after that date.
- Power of Attorney. A power of attorney allows you to appoint someone as your Agent to act on your behalf in legal transactions. A general power of attorney (POA) gives your Agent almost unfettered authority to act on your behalf while a limited POA only gives your Agent the specific authority indicated in the POA agreement. If you make any POA durable it means that your Agent’s authority will survive your incapacity.
- Letter of Instructions. As the name implies, this document is really just a letter that allows you to explain decisions made in your estate plan or addresses issues not covered elsewhere in your plan. A Letter of Instructions is not a legally binding document; however, it can go a long way toward preventing conflict and litigation if you have made decisions within your plan that may be controversial or confusing to loved ones.
Contact a Riverside Estate Planning Attorneys
If you have additional questions or concerns about estate planning, or you want to get started on your plan, contact the experienced Riverside estate planning attorneys at Sandoval Legacy Group, A Professional Law Corporation by calling (951) 888-1460 to schedule an appointment.
Have a question? Ask Dennis.