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California Estate Planning Checklist: Documents & Case Study

California Estate Planning Checklist Documents that every person should have

California Estate Planning Checklist – Guide

All estate plans are unique. However, the following is a basic California estate planning checklist that you can use to ensure your lifetime financial and healthcare needs are handled in case of incapacity and your wishes are carried out on death (while avoiding probate!). What documents are on the California estate planning checklist?

Advance Health Care Directive

One of the most important documents on the California estate planning checklist is called an advance healthcare directive. A healthcare directive allows your named agent access to your medical records so informed medical decisions can be made if you become incapacitated during your lifetime. The directive also details end-of-life wishes (choice to prolong life vs. not prolong life) and organ donation, as well as any other healthcare wishes the principal may have.

Durable Power of Attorney for Finances

Another document of the California estate planning checklist that operates during life is called a durable power of attorney for finances. A financial power of attorney is a simple way to arrange for someone to manage your finances should you become incapacitated (i.e. unable to make your own decisions/pay-off bills, etc). Having this document in place before you become incapacitated is extremely important to avoid court intervention. Otherwise, a close relative (hopefully…) will petition the court to handle your financial affairs. Talk about time, expense, and stress. The financial power of attorney can go into effect immediately (or “spring” into action upon certification that you’re incapacitated. Whether the power of attorney takes effect immediately or is a “springing power of attorney,” the document must be “durable” (i.e. it remains in place if you become incapacitated).

Last Will & Testament

A California estate planning checklist document that states your final wishes and gives instructions on how you want your property disposed of after life is called a will. A will should name an executor to carry out the wishes of the testator. If there are minor children involved, the will should include guardianship provisions for the children. The will should also instruct how debts and taxes will be paid to ensure a smooth estate administration. Most of all, however, the California estate planning checklist works best when the type of will created is a “Pour-over” will used in combination with a revocable living trust.

Revocable Living Trust

A revocable living trust is the most important document on the California Estate Planning Checklist, especially if you own real property. By placing real property into a revocable living trust the individual is no longer the owner of the property. Rather, the property is owned by the trust. So long as you keep your estate planning documents up to date, your estate will avoid the stress and high cost of probate and pass to your desired loved ones on death with a straightforward trust administration.

California Estate Planning Checklist – Case Study

The California Estate Planning Checklist contains 4 major documents to cover your interests during life (in case of incapacity) and avoid probate on deathLet’s assume a single client owns a home, bank account, and IRA. How should the California Estate Planning Checklist be utilized to ensure the client’s wishes are covered for each asset?

Home

This one’s easy. Create a revocable living trust. It will avoid probate and allow the client to spell out their wishes in regards to property disposition.

IRA

Goes by beneficiary designation. This necessitates that the client contact the financial institution to ensure the beneficiary is correctly stated on beneficiary designation form.

Bank Account

The client has the option of putting bank account into the name of the trust. Doing this ensures that the bank account will be distributed in accordance with the client’s overall plan as set forth in the trust. Sometimes, the titling of bank accounts are at odds with the trust.  When this happens (as is the case when one of the client’s beneficiaries is named as joint tenant on the account), the property will pass by right of survivorship to the beneficiary, despite what the trust provides.  This situation causes several problems:

  • The bank account is not available to pay for the expenses associated with the client’s debts and expenses of administration; and
  • The client’s beneficiaries have different claims on the estate. The beneficiaries of the trust claim that the deceased client would have wanted the bank account to be included as part of the trust, whereas the beneficiary designated on the bank account as joint tenant will claim that the decedent wanted the account to pass to him/her by right of survivorship.

To avoid any potential conflicts on death, the client would simply have to create a will and revocable living trust to avoid probate with the real property. By including the bank account in the trust, there will be no ambiguities between beneficiaries. Lastly, the IRA and any other retirement accounts go by beneficiary designation (not by trust). Also, remember, that in case the client becomes incapacitated, the health care directive and durable power of attorney with trusted agents is a must.

 

About Sean Hanley

Practicing law since 2007, Sean specializes in the ever-changing laws related to real estate, business and estate planning. Embracing technology with a focus on personalized service, he understands the challenges of living and thriving in Silicon Valley. Tapping into his education in economics and business administration, Sean also serves on the non-profit Willow Glen Business Association.

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