Estate Planning is the way to put your financial house in order, and to make sure that your wishes will be carried out if you become incapacitated or pass away.
The information provided here relates to relatively “simple” estates. Mom and Dad own a house, several bank accounts and a few investments.
The “estate plan” is like an umbrella, with four main documents located under it:
REVOCABLE (”LIVING”) TRUST
If properly prepared, a revocable trust will avoid the need for a full-blown “probate” of your estate when you pass away. In a simple estate, a trust gives your authority, after death, to transfer title of an asset without the need to seek a judge’s permission. This authority will be given to the person you name as your “successor trustee“. S/he will have the duty to carry out the written instructions of your trust, including distribution of your trust assets to the beneficiaries that you named.
The trust is referred to as “living” because it continues after your incapacity or death.
POWER OF ATTORNEY FOR FINANCIAL MATTERS
This is a very important document and one that should not be taken lightly. Placed into the wrong hands, it can become a license to steal. These powers of attorney (POA), as a general rule, should only become effective if you become “incapacitated“ Such incapacity would be determined by two qualified medical doctors who state in writing, under penalty of perjury, that you have become incapacitated and unable to make sound financial decisions. If this situation occurred, then your agent could take the two doctors’ declarations, staple them to the back of the POA, and go to your bank and have access to your funds. Remember: Even with this authority, your selected agent has a fiduciary obligation to only utilize your assets (money) for your own benefit. S/he cannot use the money for their own benefit.
POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
In California, this is referred to as an Advance Health Care Directive. It is similar to the financial POA, except the health care POA pertains only to medical decisions. In this document, you will name an “agent” to make such decisions for you if you are incapacitated. Alternate agents are generally named as well, in case your first selection is unavailable.
You may also state whether you:
Wish to be cremated or buried;
Wish to donate any needed body parts or organs, and for what purpose;
Want heroic measures to be taken to prolong your life if you have an irreversible condition that will result in your death.
Remember: It is important to deliver copies of your health care POA, not only to your chosen agent, but to all medical providers you have as well.
With an estate plan that includes a revocable trust, a Will serves to distribute your assets that are not owned by your trust. For example, it is generally too cumbersome to list, as an asset of your trust, your coffee table, your pearl necklace, your bowling ball, etc. Instead, your Will states that these items are to be distributed to certain persons. It is the duty of the person you have named as the “executor” of your Will, to deliver these items to those persons (called “beneficiaries“).
These types of Wills are referred to as “pour-over“. Your Will states that after the specifically mentioned personal property items are distributed to the specifically named beneficiaries, then the rest of your personal property will be (figuratively) “poured” into your trust, and be distributed according to the terms of your trust. The rest of the distribution is handled by your “successor trustee”.