Do you know what should be included in your last will and testament? Have you considered who you would like to receive your possessions? Who would take care of your children if you passed away suddenly?
At the Law Offices of John J. Thyne III, we can answer all of your estate planning questions and help you plan for your future. If you’ve decided to draft or update your will, or if you have recently moved to California and need to have your estate plan reviewed to make sure it complies with California law, we are happy to help.
Though it is not the most pleasant task, preparing a Last Will and Testament is one of the most important things you can do for your family. A will provides needed direction to your family at your death. Without a will, the State of California establishes how your estate is managed and distributed. Uncertainty as to your intent among family members lends itself to arguments and ill will towards fellow family members. A Will can help you clearly define your intent so that family members won’t have to guess.
What do you accomplish by Writing a Will?
- you dictate who will receive your estate and in what shares or percentages
- you may decide whether or not churches or other charitable organizations will benefit
- you appoint the individual (legally called a “Personal Representative” or an “Executor”) who will administer your estate
- if you have minor children, you select who will serve as their Guardian and who will be the Trustee of their finances
- you can set up a trust to dictate how your funds will be used for your children and how long the trust will remain in effect (without a will, your children may receive all your assets on their 18th birthday, which may not be what you wish to happen)
It is important to understand that a will only takes effect after death. A will is not filed in the courthouse or any other place until that time.
Every estate plan should include a will. If you own any real estate (including a home or any other real estate), you should consider the benefits of a Revocable Trust and have a pour-over will as a back-up. This can accomplish many different goals, such as avoiding probate, lowering estate taxes, and directing the distribution of your property upon your death. If you die with assets outside of the trust, the pour-over will directs the assets to pour into the trust and be distributed in accordance with the trust’s directions.
Power of Attorney
The two most common types of powers of attorney are:
Medical power of attorney — this document names the person who is empowered to make decisions about your health care if you become incapacitated.
Financial power of attorney — this document names someone who can make decisions about your financial affairs if you become incapacitated.At the Law Offices of John J. Thyne III, we remind our clients that powers of attorney are not only associated with severe illness, dementia or medical disasters. Young parents for example, may feel more comfortable when they give a grandparent or some other trusted individual a power of attorney delegating parental powers in case they are inaccessible at a time of a child’s need. Powers of attorney can be durable (permanent), or they can be for set periods of time. A “springing power of attorney” can be set up so that it only becomes effective in the event that you are diagnosed as incompetent. One very important thing to remember about a power of attorney is that it ceases to have any legal effect when the person who signed the POA dies. After death, the legal authority of a POA terminates and family members must then turn to a trust, if any, or file a probate court action in order to have authority to act for the estate.
There are two basic types of trusts: revocable and irrevocable. A revocable trust can be altered or revoked during the life of the grantor (the person who creates the trust). While the assets held in a typical revocable trust at the decedent’s death do not have to go through probate, they are generally subject to the estate tax (if the estate is larger than the exemption amount then in effect). Conversely, an irrevocable trust generally cannot be altered after you create it. Many irrevocable trusts are used to minimize or avoid estate and gift taxes.
For larger estates, our firm has experience in using valuation discounts and other tax-advantaged gifting strategies allowed by the Internal Revenue Service. We use specialized trusts and limited liability entities to accomplish this goal.
Living wills, also known as an “advanced directive for health care” are written instructions that explain your wishes with regard to the withdrawal of life support in the event you can’t communicate as a result of a terminal condition or if you are diagnosed as being “persistently unconscious”.By preparing your living will in advance, you relieve family members from the burden and stress of trying to guess what your wishes might be during the often intense, emotional times experienced when facing end-of-life issues.
While most people don’t think it will happen to them, if you are incapacitated due to a serious accident or illness, decisions regarding life support and resuscitation will have to be made by someone. An advance directive for healthcare allows you to specify when to use resuscitation, up to what point, and what end-of-life decisions are to be made if you are in a vegetative state. Granting powers of attorney and creating an Advance Directive for Healthcare (a/k/a Living Will) enables a loved one to access medical information, avoid HIPAA restrictions which can create unnecessary delays and legal difficulties.
The organs, tissues or parts of a decedent’s body may be donated to hospitals, doctors, schools, organ banks or storage facilities, organ procurement agencies or individuals for research, therapy or transplantation. The gift may be made by the decedent while alive or by certain persons in the order designated by statute in the case of someone who has died. The persons who may make the gift in the order they may act are:
- Agent under power of attorney for health care;
- Designated health care surrogate at the time of death;
- Guardian of person at the time of death;
- Any adult child;
- Either parent;
- Any adult brother or sister;
- Any adult grandchild;
- A close friend who can provide an affidavit demonstrating facts showing the relationship and familiarity with the decedent’s health, social history and religious and moral beliefs;
- Guardian of estate at the time of death;
- Anyone authorized to dispose of the body.
If the decedent expressed a desire not to donate or there is reason to believe the gift is contrary to the decedent’s religious beliefs or a person with priority objects, the gift cannot be made. Only persons in the highest priority class available can consent.
The decedent, while living, can make the gift (to take effect on death) in a will or any writing. The writing need not be witnessed or delivered. The donee does not have to be identified. In the absence of specification of the donee, the attending physician at death may accept the gift. The donor can designate the doctor who will carry out the gift.
When someone other than the decedent makes the gift the gift must be made in writing or a recorded message.
Paying or even offering to pay for an anatomical gift is a misdemeanor and a felony if repeated, at least if the payment is to the donor or persons making a gift of a decedent’s organs. Whether or not payment to family members who are not involved in the consent is permissible has not been decided.