What Exactly Is An Estate Plan?
An estate plan is a plan that disposes of your assets upon your death. Many people assume they don’t need an estate plan because they do not think they have enough assets that would benefit from one. However, in California, if your estate is not a small estate, within the limit of $150,000 and no real property worth more than $40,000your estate must be probated. There is a summary process to distribute a small estate, but remember even if you have an estate worth $150,000 or less, you still have an estate.
What Happens If I Die Without An Estate Plan Or A Will In Place?
If you die without an estate plan or a will in place, then your property will be distributed under the laws under the intestate succession section. If your estate is greater than the small estate amount of $150,000, then you will be required to have your estate probated in court. Probates in California courts typically never close in less than a year. Most of the time, it takes two to three years to close an estate through the courts. This is one of the reasons it is recommended people have an estate plan which includes a trust. When someone who has a trust passes away, their successor trustee steps in and administers the trust according to the terms of the trust, thereby avoiding probate.
How Often Should I Review Or Revise My Estate Plan?
You should give your estate plan a checkup whenever you have a major life event like the birth of a child, the unfortunate death of a child, the adoption of a child, a divorce, marriage or death of a spouse. A major event would also include acquiring a large amount of real estate, if you inherit some property or your business has grown by leaps and bounds. Other than these situations, I would recommend checking in with your estate plan lawyer every three to five years to ensure that your estate plan is up to date and to be sure that everything you want to be in your trust is properly funded in the trust. If you have a trust and, for example, your home is not titled in the trust, when you pass, that trust is not worth very much because that home must be probated because you failed to fund your trust properly.
Again, it is important anytime you have a major life event, including a major acquisition, sale or refinancing of an asset to check with your estate planning attorney and make sure everything is doing well.
What Are The Basic Items In An Estate Plan? What Functions Do They Accomplish?
Estate planning can take two tracks a will and a trust. The first, is to just have a will. Generally, if you anticipate there’s going to be litigation upon your death, it is a good idea to have a will in place, knowing that the administration of your estate will be through the probate court.
The other possible track is the use of a trust. Trusts are generally created to avoid probate and distribute your property. The trust can also create sub-trusts. The property can remain in a trust for the benefit of the beneficiaries for many years. Along with the trust we include what is called a pour-over will. A pour-over will captures anything that was accidentally left out of the trust or some things that are smaller in value that were intentionally left out, such as a day-to-day commuter car, and transfers those assets into your trust upon your death.
We recommend in addition to either a Will or a Trust, you include Durable Power of Attorney that becomes effective upon incapacitation. This allows the agent to accept property and to act on your behalf. Funding your trust with your assets is important. For example, if you are incapacitated and inherited a large sum of money, you would want somebody to be able to put that into your trust. With a Durable Power of Attorney, that person could accept the gift and fund it into your trust to protect your estate from going into probate.
An Advanced Healthcare Directive, which is a directive that upon incapacity allows the person you elected to have the power to make medical decisions for you is also an essential planning item. It grants the person you elect authority to administer treatment or to deny treatment if those were your instructions and to adhere to your religious beliefs, as well as to remove you from the hospital against doctor’s advice. It can also grant the power to limit visitors and determines who can take possession of your remains and how your remains are to be disposed upon passing. Lastly, the Advanced Healthcare Directive can also decide if you will be an organ donor. This is just a small list of some of the important things that people should consider when setting up an estate plan.
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