California Probate - Law Offices of Janet Brewer Blog

Your Will Is Not the Only ‘Must-Have’ in Estate Planning

A will is a good place to start. However, it is best to create complete protection.

So, you have a will. Is that the end of your estate planning? Not by a long shot because a will is only one tool that is needed to create an estate plan that protects you and your loved ones, according to the Augusta Free Press in “5 estate planning must-haves.”

1—Wills and Trusts. Your will directs the distribution of your assets. Without a will, the court will determine who gets your possessions, real property and any other assets, following the laws of your state. Depending on your situation, you and your heirs may benefit from setting up trusts to protect your assets from the probate process, maintain your privacy and possibly avoid some taxes. Keep in mind that if the will or trust is not created properly or doesn’t follow your state’s laws, it could be challenged or deemed invalid. Work with an experienced estate planning attorney to protect your family.

2—Beneficiaries. Many of your accounts—bank accounts, investment accounts, retirement accounts, insurance policies—may already have a named beneficiary, who will inherit the account upon your death. However, if you have not updated those names recently, you may find the wrong person inheriting your assets. Once that occurs, there is no legal means of transferring the assets to another person. If there is no contingent beneficiary, the court may make that decision.

3—Letter of Intent. It must be said that this is not a legally binding document. However, the information it could provide to your loved ones might be very helpful as they move through the process of settling your estate. It can explain why you structured your asset distribution the way you did, why you would want a given family heirloom passed to a specific family member, or what you would like to have happen at your funeral. If you are not able to discuss these matters in a face-to-face conversation with your loved ones, this is a useful alternative.

4—Power of Attorney. Planning for incapacity is an important part of estate planning. If you become incapacitated, you’ll need to have already given someone the power to manage your financial affairs. If you do not have a power of attorney, your family will need to turn to the court system, which will create delays and added stress. You’ll also want to have a healthcare power of attorney in place. 

5—Legal Advice. Estate planning laws are governed by your state of residence. Your best option is to make an appointment with a local estate planning attorney to learn whether there are any other documents and plans you need to put into place. Some law firms provide a means of documenting assets to ensure that, at the time of death, your family is not embarking on a scavenger hunt to identify assets. In certain states, you can assign a funeral representative to make sure your funeral, burial or cremation and memorial service wishes are carried out. Your attorney will know what you and your family need.

You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Augusta Free Press (Nov. 27, 2018) “5 estate planning must-haves”

What Medical Care Is Acceptable at End of Life?

What are your thoughts on this difficult subject?

End-of-life circumstances are not always known in advance, so it is important to prepare for emergency solutions and what life-saving measures are acceptable. Aare family members prepared to make those decisions, or would you prefer to plan for those in advance? All of these questions are best answered in advance, according to The Herald-Mail titled “It’s never too early to prepare for the end of life.”

Spare your loved ones from the agony of making decisions, based on what they think you might have wanted by planning in advance for what is, without question, unpleasant to consider. Nevertheless, in today’s era of medical technologies, such scenarios are quite possible. Let’s start with the advance directive.

Advance directives are legal documents that include both a living will and medical power of attorney. The living will allows you to document your specific preferences for medical care at the end of life. These range from aggressive intervention that saves your life, to palliative comfort care that gives medication to alleviate pain and suffering. There is a wide range between the two, so the more specific you can be, the better your loved ones will know what you want.

A medical power of attorney lets you designate a trusted person—spouse, friend or adult child—to make decisions for medical care, if you cannot do so. This is also known as a health care surrogate or proxy.

Here’s what happens when no advance planning has occurred. A critical medical situation arises, and family members are contacted. Without having had a discussion about the person’s wishes, typically an aging parent, siblings don’t know what to do. If they do know what to do, but there is no legal document attesting to their parent’s wishes or if the legal document is not physically present, the medical provider is bound by their own determination of the situation and their professional code of ethics.

That action may not be what you would have wanted. However, your family or trusted friends do not have the right to make decisions, if legal documents are not in place. The solution is relatively simple: plan in advance.

First, give serious thought to what you would want to occur. Make a list of questions to discuss with your primary health care physician.

Second, have a conversation with family members and friends about your wishes, and discuss with them their role in such situations. Are they willing to carry out your wishes and to take on this responsibility?

Third, meet with your estate planning attorney and prepare the necessary documents.

Reference: The Herald-Mail (Oct. 8, 2018) “It’s never too early to prepare for the end of life”

Healthcare Directives and Living Wills in California

California law allows people to sign advance health care directives, which combine living wills and healthcare powers of attorney in single legal documents. A health care directive states that a certain person can make decisions about your medical care and end-of-life care if you cannot decide yourself because you are incapacitated. Before you sign a health care directive, learn about the living will versus the power of attorney and what you can list in your directive.

Living Will

A living will describes the types of medical care and treatment that you want to receive or do not want to receive. In contrast, a healthcare power of attorney grants another person the ability to make healthcare decisions for you if you are incapacitated. Incapacitated could mean unconscious, in a coma, or otherwise unable to make decisions for yourself.

Living wills can include a variety of different preferences for medical care, including:

• Pain relief
• Use of feeding tube
• Artificial respiration
• Hospice care
• Life support

Sometimes, living wills describe a wish to have life prolonged as long as possible within generally accepted healthcare standards. Conversely, people may decide that they do not want their life prolonged if they have incurable and irreversible medical conditions leading to death, or they most likely will not regain consciousness.

Making decisions about these issues for yourself or for a relative can be extremely difficult and emotional. We encourage you to speak to your family and any trusted religious or spiritual advisors when deciding on the content of a living will.

Advance Health Care Directive

Again, an advance health care directive is a legally binding document that combines a living will with a healthcare power of attorney. Usually this document is only a few pages long, but it includes a lot of important information about managing your health.

Please keep in mind that while a properly executed advance health care directive is recognized in California, not all other U.S. states and foreign countries may recognize it. Talk to your attorney about drafting and signing a directive and about making your decisions known outside California. Finally, make sure you have the directive properly witnessed and signed, so it is effective should you need it. 

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Snowbirds May Want to Consider a Checklist

Heading to a warm climate is a good idea but perhaps it is best to consider legal issues before leaving.

If you are a retiree who heads south after the holidays, it might be wise to create a checklist of at least four personal legal business items, according to LimaOhio.com in “Extra checklist before heading south for the winter.”

First, make sure that your general/financial power of attorney and healthcare power of attorney documents have been updated. Does your family have copies of these documents? Or do they have 24/7 access through a portal from your estate planning law firm?

Some law firms provide laminated cards for clients to give to family and friends that gives the holders of the cards access to these powers, while clients are out of town. Others are starting to use encrypted thumb drives, so that clients have documents wherever they go. Make sure you have these documents and that the people who will need them, either have them or can get them in a moment’s notice.

Second, review your living will with your estate planning attorney. Update them if changes need to be made and get copies to your children and/or friends.

Third, make sure that your last will and testament is updated. Have you had any big changes in your life since the last time it was reviewed? Marriages, deaths, divorces, births and adoptions are the typical “trigger” events that signal a need for review. Who will have that document? If your estate planning attorney maintains original copies for clients, then make sure to have another original on your person or safely secured with a loved one.

Lastly, and this takes a little time but is well worth doing, create a list of all your assets. Make sure they are properly titled for your situation. Should you have all your bank accounts become Payable on Death to your spouse? When was the last time you checked your beneficiary designations? Chances are good there are beneficiary designations on your bank, investment, and retirement accounts and on your life insurance policies. Wherever you have a beneficiary designation, you should also have a contingency beneficiary.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include a trip in a southerly direction. Please contact our office if you need any assistance with your estate plan today.

Reference: LimaOhio.com (Oct. 13, 2018) “Extra checklist before heading south for the winter”

The Challenge of Suddenly Having to Create an Estate Plan

A medical emergency or unexpected death arises and are the proper documents prepared?

When an emergency or sudden death arises, you can suddenly find yourself in a position of having to make difficult decisions to handle the situation, as well as consider estate planning options, according to The Union in “Estate planning in a time of crisis.”

As you work to make decisions, there are three documents you’ll wish you had when dealing with a medical crisis for a loved one: a health care directive, a durable power of attorney and a living trust.

When a loved one needs help in making decisions and discussing their situation with doctors and other care providers, a health care directive grants you the authority to speak on their behalf. The law requires health care professionals to have legal permission to speak with a representative about highly personal and confidential information. The law requires medical professionals to perform life-saving procedures, which are sometimes painful and unwanted. If the wishes of the person are not correctly documented, it is not possible to stop these procedures from being initiated.

The most common need for this document, is what kind of on-going care is needed and wanted for the loved one, who can no longer express their wishes or care for themselves without help.

Any asset owned by an incapacitated person that is not titled in the name of their trust cannot be overseen by the successor trustee. The person who is named a durable power of attorney is permitted to control and direct these assets, including transferring them into the trust.

Retirement accounts, 401(k)s, IRAs, Deferred Compensation Benefit Plans, SEPs and all other assets or benefit plans not titled in the trust name can be administered only by the person named the durable power of attorney.

If there is no power of attorney at the time a loved one becomes incapacitated, the only way they can access funds outside a trust is to have a guardian appointed for their loved one. The court must be involved in every part of their life, as long as their loved one lives.

A living trust is a legal document that provides for the smooth transition of management, administration and distribution of assets by the grantor, the person who is putting their assets into their trust during their lifetime. When that person is no longer legally competent, the successor trustee takes over with all the legal powers outlined in the living trust document.

This document gives clear legal authority so that assets can be managed, income can be distributed and bill paying and distribution of the estate at death can take place.

An estate planning attorney can advise you on creating an estate plan that fits the unique circumstances before the situation becomes a crisis. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Reference: The Union (Sep. 9, 2018) “Estate planning in a time of crisis”

Can a Non-Citizen Use a Power of Attorney in California?

If you are a non-citizen spending time in California and you have people depending on you, consider signing a power of attorney.

Powers of attorney allow other people to act for you in an emergency.

Non-citizens can sign powers of attorney in California to protect loved ones in the state and elsewhere. These legal documents allow another person (called an agent) to take actions for you and in your place.

California law does recognize that people sometimes sign a power of attorney elsewhere, and if that document meets California legal requirements or the requirements of the other location it could be used here. (Probate Code § 4053.) However, play it safe by signing a power of attorney that is specifically tailored to meet California law.

First, make sure that one or more of the following is true when you sign the power of attorney:

• You are domiciled in California
• Your power of attorney relates to property, acts, or transactions in California
• The person acting as your agent, listed in the power of attorney, will perform acts in California
• You sign the power of attorney in California

If these qualifications are not met, the power of attorney may not be effective in California. (Probate Code § 4052.) If you later move outside of California, the power of attorney should still be effective as to property, acts, and transactions here.

Next, choose the types of power of attorney that you need. California law permits several kinds, depending on when and why you need someone to act for you.

The durable power of attorney allows someone to act for you even if you become incapacitated to do things yourself.

A financial power of attorney allows an agent to make financial decisions for you and transact business.

Limited or special powers of attorney give an agent limited power to perform certain tasks, such as childcare if you are unavailable or out of the country.

Finally, the advance health care directive combines a health care power of attorney with a living will to allow your agent to make health care decisions and explain your healthcare-related wishes.

Non-U.S. citizens who have U.S. citizen children may want powers of attorney that appoint an agent to care for their children if they have to leave the United States suddenly. (Also, you should explore temporary or emergency guardianship options.) If you own property in the United States, you may want an agent who can handle the property and related business if you are stuck outside the country. Anyone with medical problems can use an advance health care directive to make sure their wishes are honored while seriously ill in California.

Interested in estate planning for non-U.S. citizens or green card holders? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience and her certification as a California estate planning and probate specialist by the California State Bar Board of Legal Specialization will give you confidence and peace of mind.

To schedule a “Get Acquainted” meeting, visit our website or call us at (650) 469-8206 today.

Estate Planning Necessities to Complete Before Your Child Leaves for College

May is traditionally the time for graduation ceremonies. Children are completing their last year of high school, receiving their diplomas and before their parents know it, their last summer has raced by and they will be headed off to college in the fall.

If you are getting your child ready to go off to college, you already know that it can be a hectic and emotionally charged time. It’s easy to be completely overwhelmed by the experience and forget that this is one of those big life changes that require you to update your estate plan as soon as possible.

As the parent of a soon to be college freshman, there are a few important things you need to add to your to-do list:

1. Durable Power of Attorney for Health Care: Once your child turns 18 years old, your decision-making role as their parent decreases significantly, particularly for healthcare decisions. Hope for the best but prepare for the worst by having a durable power of attorney in place. If an accident, illness, etc. occurs and your child is unable to make their own healthcare decisions, you will not be able to make medical decisions on your child’s behalf without a durable power of attorney naming you as health care agents.
2. HIPPA Authorization: Including a HIPPA authorization form alongside the health care power of attorney described above allows parents (designated as health care agents) to communicate with healthcare professionals and insurance companies on their child’s behalf. Having access to your child’s health records and history of treatment information creates the opportunity to make an informed medical decision if it becomes necessary.
3. Durable Power of Attorney for Finances and Property: The financial power of attorney is similar to the health care power of attorney except it focuses on providing parents with the ability to make financial decisions on their child’s behalf if they are unable to make the decision on their own. If the child is to become incapacitated in any way, having a durable power of attorney for finances and property in place would enable parents to continue to pay the rent, utilities, and other bills on their child’s behalf as well as allowing access to bank accounts, loans, and other financial records.
4. FERPA Release: Designed to protect a college student’s privacy, The Family Education Rights and Privacy Act (FERPA) can leave parents blocked from access to important information in a time of emergency. Including a carefully worded FERPA release in estate planning documents gives parents the right to talk to the college administration and access relevant information and educational records if it becomes necessary.
5. Last Will & Testament: No one wants to think about creating a will for their child, but it’s a very important document to add to the estate plan. This document will allow parents to honor their child’s wishes regarding many issues, including bank accounts, personal assets, social media, etc. It also presents the opportunity for the child to specify their preferred type of funeral arrangements in writing.

If you have questions about necessary estate planning documents or if you need assistance drafting any of the above documents, please get in touch with one of the experienced California estate planning attorneys at The Law Office of Janet L. Brewer.

When Is the Best Time to Create an Estate Plan?

When someone considers the possibility of planning for their estate’s future, they often decide they need to pinpoint the best time to create an estate plan. When these same people ask an experienced estate planning lawyer to identify the best time to create an estate plan, they probably get a myriad of answers ranging from when you get married to when you get divorced to when you have kids, etc. Yet none of these actually answer the question.

When is the best time to create an estate plan? The only correct answer to the question is simple, but annoyingly vague: When you don’t need one.

The other answers that are commonly thrown around in answer to this question aren’t actually the best time to create an estate plan, they are just common triggers for creating or updating an estate plan. An estate plan is different from the normal “purchase” made by a typical consumer. Most things we do or buy are in response to something that we need or want. When our car breaks, we need a new one, so we start looking for a new car. When we’re exhausted and tired of our job we want a vacation, so we book a flight and make hotel reservations.

The need for estate planning is different. No one wants to think about future situations that might lead them to need an estate plan: dying, disability, etc. They’d much rather shop for a new car or take a vacation. In fact, many people never even consider the need for an estate plan until they’re diagnosed with an illness or reach an age when that’s all their friends are talking about. Yet advanced age and times of illness are not the best time to begin estate planning – in fact – they may be the worst. An estate plan is best created as an advance plan for future implementation for a few reasons:

1. When someone suffers an accident or an unexpected illness, they should be able to take that time to focus on their health without worrying about putting their estate in order.
2. Estate planning while handling an emergency situation or trauma does not produce the best results. In some cases, it produces disastrous results.

Waiting too long to put your estate plan in place can lead to a number of different problems: no estate plan when you need it, court-ordered guardianship, ineffective tax planning, difficulty or inability to clearly communicate wishes, inability to fund a trust, inability to implement the estate plan, uncertainty regarding an estate plan due to the haste in creating it, confusion amid family and friends, disagreement and/or contention among family and friends, disputes over the estate, challenges to estate plans created late in life or near death, and more.

If you need assistance creating an estate plan now before you need it or updating an estate plan you already have in place, please get in touch with one of the experienced California estate planning attorneys at The Law Office of Janet L. Brewer.

Love Late in Life? Estate Plan Needs Fresh Look

Getting married later in life can be wonderful.  However, don’t forget estate planning in the new lifestyle.

It is not unusual for an elderly man and an elderly woman to meet each other, fall in love and get married. The only difference between young couples and elderly couples, is that the elderly may need to do more planning before they get remarried, according to Wealth Management in "Never Too Old for Love."

The main thing every elderly couple getting married needs is to understand, is that every state has default rules for how spouses must be treated in an estate plan and in medical decision-making. This means that any current estate plans need to be reviewed and changed to account for what the couple would like to do with their estates.

Advanced medical directives and powers of attorney might also need changing as well.

Elderly people can and do fall in love with each other and get married, just like anyone else. Life does not end when people reach a certain age.  However, those who do get married later in life, should consider meeting with an estate planning attorney to create an estate plan that fits their unique circumstances. We can help with these kind of situations either remotely or in our office in Palo Alto. Contact us today for your consultation.

Reference: Wealth Management (May 1, 2018) "Never Too Old for Love."

New Directive Considers Stages of Dementia

Previous documents do not take into account the slow loss of cognitive abilities.

The usual forms filed when someone looks at possible dementia or other disabilities only become effective when someone has reached the stage of being completely unable to handle their affairs on their own. But now new forms are available that take a different approach, according to The New York Times in "One Day Your Mind Might Fade. At Least You'll Have a Plan."

A doctor has come up with a new advanced directive that accounts for the different stages of dementia and cognitive decline. It lets people decide what they would want at each stage of decline.

The idea is that this approach gives people more control and helps them create a better plan for dealing with Alzheimer's and other forms of dementia. However, not everyone is convinced that this new directive is necessary, and many believe that existing end-of-life documents are adequate.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include an advanced medical directive.

Reference: New York Times (Jan. 19, 2018) "One Day Your Mind Might Fade. At Least You'll Have a Plan."