If you die without a Will, but you own property at your death, the California Probate Code will determine who gets your property. Only through a will are you able to make your wishes known. You can make a gift of property to a minor under the California Uniform Transfers to Minors Act and avoid a guardianship of the estate for that minor. You can make a conditional gift to someone like college expenses for your child or grandchild if they choose to attend. You can leave gifts to families, charities, and friends.
In our everyday lives we are called upon to make decisions for ourselves and for our loved ones. Those decisions do not have to cease at our deaths, but the law will make these decisions for you if you do not make a valid and enforceable Will. An attorney experienced in probate and estate planning can help ensure that your estate plan is prepared appropriately to protect your beneficiaries.
If your estate exceeds $150,000 or you own real property, you should consider including a revocable living trust as part of your estate plan.
A trust is an entity that holds title to your property during your lifetime. Your trust can transfer title to your property from you to your beneficiary without a formal probate and court involvement. This simplifies and expedites the transfer of property at death while greatly reducing costs. If a conservatorship becomes necessary because you are unable to make decisions for yourself toward the end of your life, a living trust can step in during your period of incapacity to control the administration of your property.
Generally speaking a guardianship involves a minor under age 18, whereas a conservatorship involves persons who are 18 and older, but who are unable to make decisions for themselves. If a person suffers from a disability during minority that continues into their majority, guardianship proceedings will change to conservatorship proceedings. While beyond the scope of this article, at a minimum you should be aware that limited conservatorships do exist with a goal of maximizing the independence of the new adult.
Common to both guardianships and conservatorships is their focus. Both guardianships and conservatorships may be established over the person, over the estate or over the person and estate.
A complete estate plan should first and foremost focus on protecting you during your lifetime. This means that you need more than a simple Will. Conservatorship proceedings can be costly and time consuming. We therefore encourage all our clients to have durable powers of attorney in place to protect you in the event that you become unable to make decisions for yourself. The term “durable” means the power remains in effect during any period of incapacity. A power of attorney protects you the “principal” while your agent, typically referred to as your attorney in fact, makes decisions that you are no longer capable of making for yourself. These are broad powers and you should be cautious in choosing to whom you will grant these powers.
A health power is called an Advance Health Care Directive. This instrument sets out guidelines based on acts you would choose for yourself if you were able. The power can take effect when it is signed or it can be a springing power. The point is you decide rather than letting the court decide. This type of power can be given to a spouse and alternately to one or more children.
A finance power, typically referred to as a Durable Power of Attorney for Property Management, focuses on your property. If you are in a coma and cannot handle your day-to-day financial affairs, your agent, once again your attorney in fact, makes decisions as your fiduciary based on the authority you granted to them in the document.
If you become unable to take care of yourself and your property, you can avoid court involvement if you have valid powers of attorney in place. Most skilled nursing homes want to know who will be making decisions for their residents and who will be paying the bills. Without health and finance powers, a conservatorship would become necessary.
Keep the ball in your court. A complete estate plan prepared by professionals who know what they are doing will help you maintain your dignity. We all know that death is inevitable, but we can make the process less painful for everyone. A good estate plan can save both time and money while making the difficult choices for your loved ones.