California Probate - Law Offices of Janet Brewer Blog

Can I Make My Retirement Plan My Estate Plan?

“People are worried about the possibility of a sudden death due to COVID-19, and they want to get their legal affairs in order. Exacerbating the situation are the stories we read in the media about patients who are unable to communicate with loved ones, and hospitals that, because of the exigent circumstances, are creating their own do-not-resuscitate (DNR) rules—even if they conflict with the patient’s wishes.”

If you’re in a situation where you must quickly create or update your estate plan, here are some suggestions that might help you. Every situation is different, Forbes’ article “Seven Tips For Converting Your Retirement Plan To Your Estate Plan,” says, but these some tips that may start the process.

1. Speak with an experienced estate planning attorney. An experienced estate planning attorney will help make certain that your documents make sense for your situation and are legally drafted. Contact our office today to schedule your consultation.

2. Create your will. You can only have one valid will, and it should be made under the state laws of your domicile with the help of an experienced estate planning attorney.

3. Draft Power(s) of Attorney. A Power of Attorney (POA) is a legal document through which you appoint the person you want (your “agent”) to act on your behalf if you are unable to do so, usually because of physical or mental incapacity. POAs are best created using the rules of the state in which you anticipate their use.

4. Complete your HIPAA releases. If you have designated an agent under your medical Power of Attorney, but she doesn’t have HIPPA authority to be informed of your medical condition, it will be a hassle. HIPAA is designed to protect a person’s health information privacy. Sign a HIPAA Release Form for your POA agent in advance, to avoid headaches for your family.

5. Draft a living will or advanced directive. This document states your preferences for life sustaining treatment. Living wills generally have provisions related to end-of-life care and require the maker's and witnesses' signatures to make them legally binding—but this varies in each state.

6. Understand the POLST process. A Physician Orders for Life-Sustaining Treatment (POLST) order is a medical order. The process improves communication of a person’s decisions to accept or decline medical intervention and to make certain that these decisions are honored. Advanced directives and POAs are important, and generally should be filed with your physician and hospital, but a POLST order is in many medical emergency situations the one form the doctor will see.

7. Create a document storage plan. Estate planning forms should be kept in places where they are easily accessed. Don’t place them in a safety deposit box, because of rules banks have about access after the box holder’s death.

Reference: Forbes (April 9, 2020) “Seven Tips For Converting Your Retirement Plan To Your Estate Plan”

What Should My Estate Plan Include?

“Though most people who contract COVID-19 experience mild symptoms, it doesn’t hurt to be prepared if you do need to be hospitalized. It can feel scary thinking about getting sick or not being able to make decisions for yourself, but an estate plan is meant to ease your fears. After all, wouldn’t you feel better knowing that the burden of making health and financial decisions will never fall on unprepared family members?”

The Huffington Post’s recent article entitled “A Guide To Estate Planning During The Coronavirus Pandemic” says that almost everyone should have an estate plan—even if there’s no major health threat. If you don’t have one, right now is a great time to put it together.

In the COVID-19 pandemic, the two most critical documents to have are medical and financial powers of attorney. You should name someone to do your banking or make your medical decisions, if you are quarantined in your home, admitted to the hospital, or become incapacitated. When you have those in place, you need to create a comprehensive estate plan. Let’s look at the documents you should have and what they mean.

1. A Financial Power of Attorney. This is a legal document that gives your agent authority to take care of your financial affairs and protect your assets by acting on your behalf. For example, your agent can pay bills, write checks, make deposits, sell or purchase assets, or file your tax returns. Without an FPOA, there’s no one who can act on your behalf. Family members will have to petition the probate court to appoint a guardian to have these powers, and this can be a time-consuming and expensive process.

2. A Health Care Power of Attorney. Like a financial power of attorney, this legal document gives an agent the power to make health care decisions on your behalf, if you become incompetent or incapacitated. If you’re over the age of 18 and don’t have an HCPOA, your family members will have to ask the probate court to again appoint a guardian with these powers.

3. A Living Will (Advance Health Care Directive). This allows you to legally determine the type of end-of-life treatment you want to receive, in the event you become terminally ill or permanently unconscious and cannot survive without life support. Without a living will, the decision to remove life support is thrust upon your health care agent or family members, and it can be an extremely stressful decision. If you draft a living will, you detail your wishes and take that decision out of their hands.

4. A HIPAA Waiver. An advance health care directive will likely contain language that allows your agent to access your medical records, but frequently hospitals will refuse access to medical information without a separate HIPAA waiver. This lets your agents and family members access your medical data so they can speak freely with your physicians, if there is a medical emergency or you become incapacitated.

5. A Will. A last will and testament is a legal document through which you direct how you want your assets disbursed when you pass away. It also allows you to name an executor to oversee the distribution of your assets. Without a will, the distribution of your assets will be dictated by state law, and the court will name someone to oversee the administration of your estate. A will also lets you name a guardian to take care of your minor children.

6. A Living Trust. A revocable living trust is a legal tool whereby you create an entity to hold title to your assets. You can change your trust at any time, and you can set it up to outlive you. In the event you become incapacitated or are unable to manage your estate, your trust will bypass a court-appointed conservatorship. A trust also gives you privacy concerning the details of your estate, because it avoids probate, which is a public process. A living trust can also help provide for the care, support, and education of your children, by releasing funds or assets to them at an age you set. A living trust can also leave your assets to your children in a way that will lessen the ability of their creditors or ex-spouses to take your children’s inheritance from them.

Contact our office today to schedule your consultation.

Reference: The Huffington Post (April 7, 2020) “A Guide To Estate Planning During The Coronavirus Pandemic”

How Do I Start My Estate Plan?

“Estate planning design and implementation is not only complex but can be highly emotional. Therefore, it’s important to have a basic understanding of the estate planning process, before approaching a professional.”

The decision to start an estate plan is critical for all families, but it can also be a challenge. In many cases, the greatest impediment families face initially is discussing death, especially the deaths of family members. Forbes’ recent article entitled “Estate Planning 101: Tackling Your Estate Plan” suggests several life events that will trigger the need to create an estate plan for your family or business.

The article also reminds us that it’s important to think about what might happen to you or someone in your family, in the event of a substantial life change. Here are some life events that can necessitate the need for an estate plan and a visit with your attorney:

• A marriage;
• The birth or adoption of a child or grandchild
• The start of a new business
• A significant increase in net worth
• Changes in the tax laws
• The death of a spouse or family member
• Receiving an inheritance
• A divorce
• The sale of a business or property

There is no exact standard for when you should start creating your estate plan, but if any of these events happen to you or your family, it would be wise to start the conversation. While planning your estate may feel overwhelming, laborious, or expensive, not having a plan can be financially devastating, and can add stress to the situation.

Estate planning is a continuous process that should be tracked and reviewed annually. Let’s look at the steps for creating an estate plan:

Understand the Basics. First, learn the basics of estate planning and understand how the gift and estate tax laws may have an effect on your assets.

Identify Your Objectives. Map out your objectives and select possible guardians, executors, trustees, heirs and other details with your attorney. You should also draft a personal financial statement, detailing a breakdown of your assets and liabilities.

Look at Your Insurance. Third, you should review what you have for life insurance to be certain that it’s aligned with and structured appropriately for your objectives. You may need to look into life insurance as a way to protect your family and income, if you haven’t done so already.

Finalize the Design Of Your Estate Plan. Finalize your estate planning design with the help of your estate planning attorney. Review your fiduciaries and your will, powers of attorney, trusts, healthcare proxy and a living will.

Sign your Documents. Next, you need to sign the documents.

Visit Your Plan Periodically. Finally, review your plan every few years or when there is a life event in your family.

Now that you have the basics under your belt, it should feel easier to address this important task.

Reference: Forbes (March 11, 2020) “Estate Planning 101: Tackling Your Estate Plan”

Have You Prepared End-Of-Life Decisions?

“Unless you are a spring breaker partying it up, you have probably given your own mortality a once-over or two during these long COVID-19 days.”

Florida Today’s recent article entitled “As COVID-19 spreads, are your end-of-life directives in order?” explains that the Conversation Project surveyed Americans about the need for end-of-life directives. About 92% of respondents thought it important to discuss their wishes for end-of-life care and 95% of them are willing to talk about these wishes. However, just 32% have actually gone ahead and had the discussion.

With the threat of COVID-19, there’s a sudden urgency to engaging in discussions of end-of-life treatment. Although the young and healthy are more apt to fight through the illness, the elderly and the infirm are not likely to survive, despite using a ventilator. It’s hard to put someone on a ventilator and even harder to have it removed, when there’s no chance of recovery.

For example, if you didn’t have a healthcare directive and you ended up on a ventilator—but that wasn’t what you wanted—you could live a long time in a nursing home with a very poor quality of life. Without an advance directive and if you’re not able to speak for yourself and haven’t named an agent, the state will appoint a guardian to make these critical decisions. This will be a person who knows nothing about you but will have the authority to make decisions about your health and well-being. If your family is found, and they disagree with the guardian, it can be a big problem.

Name someone who can speak for you, when you can no longer do so. Tell them your wishes for end-of-life care. Your agent will need to make tough, quick decisions on your behalf. The next step is to complete a health care proxy or power of attorney. This is a legal document in which you appoint the person to be your agent, when health care decisions need to be made and you can’t speak for yourself.

You should have your attorney prepare an advance directive or living will. This is another legal document that states your wishes regarding end-of-life medical care and delineates treatments you do or not want.

Give your agent a copy of your living will. You should also give a copy to your primary care physician and to anyone else you think should have it. Keep a copy available for yourself. Let your family know where the document can be located.

Your advance directives should provide instructions on DNR (“do not resuscitate”) and the use of a ventilator or tube feeding, hospice and palliative care and organ donation. It’s not a pleasant topic, but the time to discuss it is before you’re headed for the hospital.

We can help you create or update your complete plan, simply call or email us today.

Reference: Florida Today (April 14, 2020) “As COVID-19 spreads, are your end-of-life directives in order?”

All the Medical Treatment Estate Planning Documents You Need to Sign

When trying to get your affairs in order, you may wonder which medical treatment estate planning documents you need to sign. In no particular order, you can choose to sign an advance directive, a power of attorney, a living will, a POLST form, or a DNR form.

Advance Directive

An advance directive combines a medical power of attorney and a living will into one document. You can designate an agent to make medical decisions for you, explain which life-saving or -sustaining treatments you want to receive, and specify end-of-life wishes. An advance directive could contain instructions about when to remove life support, organ donation, last rites, making anatomical donations, funeral arrangements, and more.

Power of Attorney

A medical power of attorney gives a specified person, called an agent, the legal power to make medical decisions for you if you are incapacitated. You can specify in the power of attorney document which decisions the agent can make, or you can leave it open and allow the agent to make all necessary decisions. You should notify the agent that you choose so he or she knows to act in an emergency. Consider discussing your wishes in depth with your agent as well.

Living Will

A living will explains your end-of-life wishes, including your wishes for life-sustaining treatment or lack thereof. For example, you can detail whether you want doctors to put you on life support, whether you want intubation or feeding tubes, and what you want to have happen to your body after death (organ donation, burial, or other options).

POLST Form

Similar to an advance directive or living will, a California Physician Orders for Life-Sustaining Treatment (POLST) form specifies which life-sustaining treatment you want to receive. You can check boxes to receive defibrillation or CPR, IV medications, or other kinds of treatment. If you have specific preferences about treatments you do not want to receive, a POLST may be a good idea.

DNR Form

Finally, a Do Not Resuscitate (DNR) form tells doctors not to perform life-saving measures if your heart stops beating or you stop breathing. If you choose to fill out this form, you’ll want to carry copies with you or have it on file with your doctors.

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.

Is Your Estate Plan COVID19-Ready? Three Things to Review Now

Unique aspects of the coronavirus pandemic may cause you to re-evaluate some elements of your current estate plan.

Even if you have done comprehensive estate planning with the guidance of a qualified attorney, you may want to re-evaluate certain elements of your plan now, through the lens of the coronavirus pandemic.

Why? There are two uniquely challenging aspects of this pandemic that your current plan may not adequately address.

1. Medical treatment for severe cases of COVID19 frequently involves intubation and ventilator therapy to combat respiratory failure … and
2. Quarantine and isolation orders blocking hospital visitors create some communication barriers between patients, doctors and family members.

How might these unique challenges impact your estate plan?

Living Wills. If your living will contains a blanket prohibition on intubation, you may want to reconsider that decision.

Durable Powers of Attorney (DPOA). Given the communication difficulties that may arise when a patient is hospitalized during this pandemic, you may want to revisit the terms of your DPOA to make it easier for your agent to act on your behalf.

Health Care Proxy. A health care proxy allows you to appoint someone else to act as your agent for medical decisions. Under normal circumstances, this person would likely confer with your attending physicians in person and again, these in-person communications may be difficult right now. You want to add language to expressly authorize electronic communication with your agent.

A qualified estate planning attorney, who focuses exclusively in this area of the law, can advise you on whether your current plans accurately represent your wishes during this uniquely challenging time. We are here for you today. Please call or email today.

Resource: ElderLawAnswers, Three Changes You May Want to Make to Your Estate Plan Now Due to the Pandemic, April 30, 2020

Am I Making One of the Five Common Estate Planning Mistakes?

“When is the last time you updated your will? Could your beneficiaries have changed? If you have a trust, did you actually fund it? Is your plan ready for the new SECURE Act? Here are five mistakes you don't want to make.”

You don’t have to be super-wealthy to see the benefits from a well-prepared estate plan. However, you must make sure the plan is updated regularly, so these kinds of mistakes don’t occur and hurt the people you love most, reports Kiplinger in its article entitled “Is Anything Wrong with Your Estate Plan? Here are 5 Common Mistakes.”

An estate plan contains legal documents that will provide clarity about how you’d like your wishes executed, both during your life and after you die. There are three key documents:

• A will
• A durable power of attorney for financial matters
• A health care power of attorney or similar document

In the last two of these documents, you appoint someone you trust to help make decisions involving your finances or health, in case you can’t while you’re still living. Let’s look at five common mistakes in estate planning:

# 1: No Estate Plan Whatsoever. A will has specific information about who will receive your money, property and other property. It’s important for people, even with minimal assets. If you don’t have a will, state law will determine who will receive your assets. Dying without a will (or “intestate”) entails your family going through a time-consuming and expensive process that can be avoided by simply having a will.

A will can also include several other important pieces of information that can have a significant impact on your heirs, such as naming a guardian for your minor children and an executor to carry out the business of closing your estate and distributing your assets. Without a will, these decisions will be made by a probate court.

# 2: Forgetting to Name or Naming the Wrong Beneficiaries. Some of your assets, like retirement accounts and life insurance policies, aren’t normally controlled by your will. They pass directly without probate to the beneficiaries you designate. To ensure that the intended person inherits these assets, a specific person or trust must be designated as the beneficiary for each account.

# 3: Wrong Joint Title. Married couples can own assets jointly, but they may not know that there are different types of joint ownership, such as the following:

• Joint Tenants with Rights of Survivorship (JTWROS) means that, if one joint owner passes away, then the surviving joint owners (their spouse or partner) automatically inherits the deceased owner’s part of the asset. This transfer of ownership bypasses a will entirely.
• Tenancy in Common (TIC) means that each joint owner has a separately transferrable share of the asset. Each owner’s will says who gets the share at their death.

# 4: Not Funding a Revocable Living Trust. A living trust lets you put assets in a trust with the ability to freely move assets in and out of it, while you’re alive. At death, assets continue to be held in trust or are distributed to beneficiaries, which is set by the terms of the trust. The most common error made with a revocable living trust is failure to retitle or transfer ownership of assets to the trust. This critical task is often overlooked after the effort of drafting the trust document is done. A trust is of no use if it doesn’t own any assets.

# 5: The Right Time to Name a Trust as a Beneficiary of an IRA. The new SECURE Act, which went into effect on January 1, 2020 gets rid of what’s known as the stretch IRA. This allowed non-spouses who inherited retirement accounts to stretch out disbursements over their lifetimes. It let assets in retirement accounts continue their tax-deferred growth over many years. However, the new Act requires a full payout from the inherited IRA within 10 years of the death of the original account holder, in most cases, when a non-spouse individual is the beneficiary.

Therefore, it may not be a good idea to name a trust as the beneficiary of a retirement account. It’s possible that either distributions from the IRA may not be allowed when a beneficiary would like to take one, or distributions will be forced to take place at a bad time and the beneficiary will be hit with unnecessary taxes. Talk to an experienced estate planning attorney and review your estate plans to make certain that the new SECURE Act provisions don’t create unintended consequences.

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: Kiplinger (Feb. 20, 2020) “Is Anything Wrong with Your Estate Plan? Here are 5 Common Mistakes”

Estate Planning in the Time of Coronavirus

Who will make decisions about your finances and health (maybe even your life) if you get COVID-19?

These can be scary times … and thinking about getting sick or not being able to make decisions for yourself just adds to the fear. But a strong estate plan can ease those fears when you’re confident that the burden of making your health and financial decisions will never fall on unprepared family members.

Isn’t a Will Enough?

Though most people think a will is an estate plan, you may be surprised to learn that a will does not appoint nor allow someone else to do your banking or make your medical decisions if you are quarantined at home, admitted to the hospital, or become incapacitated. A strong estate plan addresses these issues and more, including the protection and distribution of your assets. 

During this pandemic, two of the most important decisions you will need to make are

• Who will take care of my financial affairs if I can’t?
• Who will make medical decisions for me if I can’t?

Neither of these decisions can be made – or enforced – with a will.

Financial Decisions

When you designate a financial power of attorney, you are giving someone else the authority to carry on your personal financial affairs and protect your property by acting on your behalf. This person will be able to pay your bills, write checks, make deposits, sell or purchase assets and sign tax returns … all things you may not be able to do for yourself if you are seriously ill or quarantined at home.

What happens if you don’t make this legal appointment? Most likely, your family members will have to petition the probate court to appoint a guardian … a time-consuming and expensive process that can be avoided with proper legal planning.

Medical Decisions

Similarly, you’ll want to give someone health care power of attorney, so they can make medical decisions on your behalf if you can’t do so yourself. Again, if you are over age 18 and have not made this legal designation, your family members could have to go to court to have a guardian appointed for you.

These are important decisions, but they are just the beginning of a strong estate plan to protect yourself, your loved ones and your property. Meeting with a qualified estate planning attorney can ensure you are protected should the unthinkable happen.

If you have any questions about your current estate plan, please call or email us today.

Resource: Huffpost, A Guide to Estate Planning During the Coronavirus Pandemic, April 8, 2020

Medical Emergency? The Estate Planning that You Need Now

If you suddenly have a medical emergency, you might have the immediate need for estate planning. An emergency can help you focus on the important things in life, but also make you realize that you are not prepared. An estate plan can get your affairs in order and give you more peace of mind.

First Steps After a Medical Emergency

As you sit in a hospital bed or return home after a scary medical emergency, you might be thinking about what went wrong. Maybe the hospital wouldn’t let your partner in your room, or your business lost money because you were unreachable. Or maybe you began to worry about your future and providing for family.

If there is any risk that you will return to the hospital soon, you might want to sign a power of attorney or advance directive right away. These documents allow other people of your choice to make decisions for you if you are incapacitated. For example, an advance directive could help an unmarried partner gain access to your hospital room and make medical decisions for you. A power of attorney for finances could help a trusted employee make business decisions while you cannot, to keep money coming in the door.

You can complete and sign powers of attorney or advance directives very quickly, especially with the help of an estate planning lawyer. Give a local lawyer a call now to protect yourself, your family, and your business during possible future emergencies.

Estate Planning for the Long Term

In addition to immediate practical problems, a medical emergency may force you to think about future issues as well. For example, you may realize that you do not have a will or any other estate planning in place. Your children, spouse, partner, or other relatives could be left without financial resources. Or someone might inherit contrary to your wishes.

To solve this stressful problem, get important estate planning documents in place now. You may want to sign a will, purchase life insurance, make beneficiary designations on retirement accounts, and more. Do keep in mind that some life insurance companies reject people with significant medical problems. But you could qualify for some policies or have other options such as disability insurance.

When it comes time to set up the estate plan, definitely speak to a lawyer rather than looking for free forms. You might have a complicated family situation or face potential tax issues that free forms will not address. Plus, a lawyer can determine the best plan for you that will cover your wishes and needs.

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.

Why Is Estate Planning So Important?

“Having an estate plan is among the most important things you can do for your loved ones. It is, however, a task many of us dread and put off dealing with until later in life. If there is one thing we can recommend, it is that it is never too early to start planning. However, it can be too late. Do you have an estate plan that will provide for your loved ones in the event of death or upon incapacity?”

If you are new to the concept of estate planning, you can get swamped with issues fairly easily. You should still soldier on. Start with the basics, says Forbes’ recent article entitled “The Importance Of Estate Planning.”

An estate plan is a collection of legal documents that details the way in which you want your assets distributed after you die, along with how you want people you select to handle health and financial decisions, if you’re unable to do so for yourself while you’re alive.

A comprehensive estate plan written by an experienced estate planning attorney can help you feel more confident about the future because you’ll know your loved ones will be cared for and that the legacy you leave behind is the one you planned. Well thought-out planning now can help decrease any taxes and probate fees and make certain that your loved ones will have less to worry about and less stress when you are gone. However, if you don’t make plans for your estate, it can result in unintended complications for your family.

Let’s look at some of the essential estate planning documents:

• Will: This is the standard document in your estate plans. Your will designates an executor (or personal representative) to administer the distribution of your assets as you want. In your will, you can also appoint guardians of minor children who will care for them.
• Durable Power of Attorney: This document names a trusted family member, friend, or advisor to serve as your agent to act on your behalf in your financial and legal matters.
• Healthcare Proxy: It will name a trusted individual to make medical decisions for you when you are unable, and permits access to your medical records (some institutions may require more documentation for full access to medical records).
• Living Will: This is where you can state your end-of-life care wishes. Living wills can cover pain relief and whether you would want a ventilator, feeding tube or resuscitation.

You also need to regularly review and update your estate plan. There may be changes in probate and tax laws, as well as life changes, such as marriage, divorce, or the birth, adoption, or death of a family member that require a revision of your plan.

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: Forbes (March 2, 2020) “The Importance Of Estate Planning”