The estate planning practice helps individuals, couples, domestic partners, and families with their estate planning needs. As a certified specialist in estate planning, trust, and probate law, David assists clients in drafting wills, trusts, durable powers of attorney and advance health care directives. Revocable and irrevocable trusts can be utilized to avoid probate and minimize or avoid estate taxes. Trusts can deal with minor children provisions, second marriage situations, same-sex couples, life insurance issues, special needs situations, blended family concerns, and contestment issues. Estate plans also encompass business succession planning.
We can help you prepare your will as it can accomplish many things and deal with various situations. A will is a basic element of estate and financial planning. Everyone needs at least a simple will to ensure that your wishes are known and that your affairs are handled in the manner you would like. A will is an essential component of a basic financial plan. It is the cornerstone of a living trust as it functions as a routing mechanism to ensure that property not in a trust on a person’s death can be willed to the person’s living trust.
A will addresses considerations such as: Who will inherit your property? What property will be distributed pursuant to the terms of your will? Who will be the executor of your estate? Who will serve as the guardian of your children? Is your partner protected?
Whether you have a large estate or a small estate or feel you really do not own anything, you should still at least have a will. At a minimum it appoints someone to help manage your estate and have control over whatever assets you own, now or in the future. It also gives some clarity and guidance to third parties, such as financial institutions and government agencies. It makes things a lot easier for your loved ones and heirs when the time comes to deal with your estate. If you cannot decide on an executor or have no immediate family who could serve as executor, we can help you find a qualified private fiduciary. Same sex couples have special considerations and we can assist with a properly structured will.
We also advise clients on making changes to an existing will as there are two options. You can prepare a codicil to your will which addresses only the changes that are being made. Alternatively, you can revoke your old will and create an entirely new will, which often removes any confusion that a codicil might cause.
We can help you prepare a living trust. A trust is a legal instrument that identifies who created the trust, the assets that will be held in trust, the person responsible for managing and administering the trust assets, the purpose of the trust and the manner and conditions under which distribution of the trust assets may be made.
The main purpose of a trust is to streamline the distribution of your estate and avoid probate. In the event of your death, a will simply states where your assets are to go; however, it can take months to probate a will, to sell your property and for your directions to take effect. With a trust, your assets are quickly and simply transferred to the beneficiaries of the trust while avoiding the costs of probate.
When you establish a trust you retain control and flexibility over how the assets in the trust are managed and distributed. It provides instructions on what will happen to your assets when you die plus provisions which control what will happen in the event that you become physically or mentally incapacitated. There are other advantages of a trust, such as protecting your privacy, minimizing estate taxes, and making a proper plan to deal with minor children. For instance, you may have a trust set up upon your death to provide for the educational needs of your minor children and terminate on a certain age (age 25 or 30 for example). You can select a trustee who would manage their share of the estate and give them the necessary financial support without allowing them to squander their inheritance.
There different types of trusts. They may be revocable or irrevocable. A revocable living trust means that the settlor retains ownership and control of the assets placed into the trust during his or her lifetime. The settlor has the right to withdraw or distribute the money at any time. The settlor also has the right to amend or terminate the trust at any time. As such, the settlor or maker of the trust takes on several roles all at the same time: being the trustee of the trust who controls and administers the trust assets and the current beneficiary who receives distributions from the trust. The trust can then provide for a successor trustee to manage and make distributions from the trust in the event the settlor dies or becomes incapacitated. An irrevocable trust means that the settlor has voluntarily forfeited control or ownership of the assets held in trust. These trusts are often set up for estate and gift tax reasons.
Trusts are an integral part of today’s estate plans and may be used by individuals, couples, families, and domestic partners. We have particular expertise in dealing with the issues facing today’s same sex couples.
POWERS OF ATTORNEY/ADVANCE HEALTH CARE DIRECTIVES
We draft various financial and health care powers of attorney. With a power of attorney you give written authorization for another person to represent you or act on your behalf in your absence or if you are incapacitated. This type of power allows your designated agent to make financial and/or medical decisions for you, and should only be given to a person in whom you have absolute trust. If you do not have an agent, you can appoint a private fiduciary to help you. You can select from many qualified fiduciaries.
While a simple will documents your wishes in the case of your death and is only effective upon death, a power of attorney documents your wishes while you are alive and is used in the event that you become physically or mentally incapacitated. Its scope may be limited to a specific situation, or it may be general. It ceases to be effective upon your death. Regardless of the size of your estate, a power of attorney is a necessary part of an estate plan. Same sex couples can utilize a power of attorney to ensure each has control of each other’s finances and estates. Asset protection is key in these situations.
Financial powers of attorney allow your agent to manage your estate on your behalf. Your agent can take certain actions like fund your living trust, communicate with financial institutions, and file your tax returns, even after you are incapacitated. Without a power of attorney your estate would face the costly alternative of a conservatorship. You can make them effective immediately upon signing or if you are incapacitated. Usually incapacity is determined by one or two doctors. You can also limit the power to a certain act like dealing with a specific parcel of real estate or limit its effective duration.
Advanced Health Care Directive is a separate document that deals with medical situations. You can specify your wishes in regards to the type of treatment you would like to receive if you are incapacitated. Many people have specific desires as to life-sustaining treatment, anatomical gifts, cremation, and burial. You can also appoint an agent to have decision making authority in the event you cannot make medical decisions on your own. The power can be made effective immediately upon signing or when you are rendered incapacitated.
Contact us at (925) 472-8000 for more information or if you questions.