A Will is one of the building blocks in Estate Planning. If you own assets in your name alone, they may pass from you to the people you love, as long as you leave a Will. Without a Will, your assets pass according to the State’s rules, also known as intestacy. The State may not pass your assets to the people you care about.
A will is a legal document which:
• Names individuals (or charitable organizations) who will receive your assets after your death, either by outright gift or in a trust.
• Nominates an executor who will be appointed and supervised by the probate court to manage your estate; pay your debts, expenses and taxes; and distribute your estate according to the instructions in your will.
• Nominates guardians for your minor children.
Living Wills / Health Care Directives
A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments, the types of special treatment you want or don’t want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation and organ donation. Also known as a Health Care Directive, this document is important to have because it informs your health care providers and your family about your desires for medical treatment in the event you are not able to speak for yourself.
To obtain a Health Care Directive, follow the next steps:
• Gather information for decision making.
• Discuss your end-of-life decisions with key people.
• Designate a person to carry out your wishes.
• Have us prepare your legal document.
• Inform key people of your wishes.
Thinking about your end-of-life choices today can improve your quality of life in the future and ease the burden on your family. The most important thing about the health care directive is that you, your family and your doctor each understand your wishes.
Power of Attorney
A Power of Attorney (POA) is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. If you become sick or disabled, either temporarily or permanently, who will make decisions for you?
A Power of Attorney allows you to appoint someone you trust to handle your affairs if you cannot do so. If you cannot pay bills, get records or make other decisions, your family will be prevented from helping you get treatment, pay doctors or for Medi-Cal.
Without a Power of Attorney, your family may have to file what is known as a Conservatorship of the Person and on the Estate of the disabled person. This process involves the Court, several lawyers and usually at least $5,000 to $50,000. A Power of Attorney might cost $250.00.
You can create a trust that permits and give you the right to receive full benefits from it. This type of trust is typically referred to as a Revocable Living Trust and is often used as a substitute to your Will. It permits you to keep total control and access to all your assets during your life, and provides for the distribution of your assets to your beneficiaries at your death. We often refer to a revocable living trust as your Book of Instructions.
A well-established advantage to Revocable Living Trusts is the avoidance of probate, which is required if you use a will to distribute your assets after death.
Other advantages of Revocable Trusts, when properly drafted, can include:
• Asset protection for your spouse after your death.
• Special needs planning for disabled beneficiaries.
• Asset management and protection for children who are not proficient with handling money.
• Protection of assets from a spouse’s subsequent marriage after your death.
• Disability planning in case you become disabled prior to death.
• Asset protection for your children if in bad marriages or to ensure your assets don’t go to the in laws.
• Keeping your affairs private (as opposed to open for public review in probate).
• No court intervention required (handled entirely by Trustee you name in accordance with your detailed instructions).
• Plan for proper management of your business in your absence.
Very few revocable living trusts provide these benefits. Only a qualified estate planning attorney will know how to incorporate these protections into your plan. While a Revocable Living Trust has many advantages, it does not protect your assets from a nursing home, lawsuits, divorce bankruptcy or other creditors.
A Special Needs Trust is created to provide benefits and protect assets of a physically disabled or mentally ill person, and enhances the Beneficiary’s quality of life.
When a person has properly funded a living trust during their lifetime, generally no probate is necessary to transfer his assets to his heirs at his death. Unlike a Will, a trust is a private document and does not have to be filed with the Court. The Trustee must keep beneficiaries informed; gather all the assets; identify creditor’s and pay any debts; keep records and provide an accounting; file taxes; distribute assets and/or income conformity with trust provisions to beneficiaries, etc. These activities are very similar to a probate. The major difference is that, with a living trust, everything is handled privately, without court supervision, which makes for (in most cases) a faster, less expensive administration process.
Trustees often lack the time, resources or knowledge to personally administer the trust, and therefore may call upon legal, accounting and investment professionals for assistance.
Long Term Care
The needs to the elderly and disabled are not just financial. Every day brings issues concerning health, well-being, and proper care. Long-term care is provided to an individual who needs assistance performing basic daily living activities due to a chronic disease or disability. The cost of long term care can take an emotional and financial toll on you and your family.
It’s important to start planning for long-term care now to make sure your loved one gets the care they may need in the future, which can be provided at home, in a community, in assisted living, or in a nursing home.
At The Law Offices of Antoinette Middleton, we give you and your family the peace of mind that comes from knowing that your loved one is safe and getting the right care. We provide Legal Services to protect their assets, coordinate public and private resources to pay for long-term care and assist with Medi-Cal to help you understand and make wise choices.