Approval, confirmation and affirmation! We all like these things, right? For years I have encouraged clients to get “bank” or “special” powers of attorney for assets that are not a part of their trust. This includes Calpers which has benefits not a part of the living trust. I recently received notice from a large law firm referral company of the importance of recommending to California state workers to get special powers of attorney. I agree! This should be a part of your estate plan! Here’s a LINK.
I am going to probate Court today on an interesting case. It’s not something you see every day. There is a conservatorship of the person but not the estate. My lead conservatorship attorney, Jennifer Rouse, opted to skip the conservatorship of the estate to save on costs.
The financial matters are mostly done through the trust. However, some assets (an annuity and also social security payments) are not owned by the trust and thus the power of attorney is being used for a lot of financial matters. Remember trusts have no say-so when the assets are not owned by the trust. A conservatorship of the estate is one option but it’s costly to set up and maintain; plus it’s very restrictive. A power of attorney is more flexible and definitely cheaper to administer.
Today I am appearing in Court for approval of a combined trust/power of attorney accounting among other issues.
It’s important to remember that there are different ways to solve a problem so make sure you have a creative attorney.
No this is not as good as meeting with an attorney and getting a proper document made up. However, if you are in a pinch and need a document fast this should work. Here is the link to the UCSF Medical Center Advanced Health Care Directive. It would work anywhere in California and probably anywhere in the country. Make your wishes known!
Powers of attorney are legal documents wherein you appoint an “attorney in fact” to act on your behalf. This person is not an actual an attorney but “attorney in fact” basically means they will stand in your shoes to make whatever decisions are needed for you. While POA’s are essential documents that most every estate planning lawyer will include in your estate plan they are not all inclusive. This is because most full estate plans include a revocable living trust and most assets are transferred into the trust. The POA only deals with things that are NOT in the trust. Thus the financial POA is limited in scope for most estate planning clients. Having said that the POA is still essential and necessary as it can help a person make decisions for you for non-financial matters like going to the DMV, caring for pets, and other day to day activities.
“No, I don’t need an estate plan, just a simple will….”
I hear this a lot. People think an “estate plan” is only for the rich people or an estate plan is going to cost too much. Even the most basic documents, like a SIMPLE WILL, is part of an ESTATE PLAN. For that matter having no documents is part of an estate plan… one decided by the California legislature!
While it’s true that many clients do not need a living trust that does not mean they should use a computer program, paralegal or general practice lawyer to do their estate plan. The ways to mess up an estate plan are many and the costs are huge. The costs are not only monetary but emotional.
Talk to a licensed and experienced California CERTIFIED SPECIALIST IN ESTATE PLANNING, TRUST AND PROBATE LAW about your estate plan. A basic plan should probably include some, or all, of the following:
- Will (with testamentary trust if anybody under 25 or 30 may inherit);
- Power of attorney for financial affairs;
- Power of attorney for medical affairs;
- HIPPA release;
- Nomination of Guardian (can also be in the will);
- Assistance with change of beneficiary forms for life insurance, IRAs, 401ks and other assets with a death beneficiary.
Again, Contact a Professional to get it done right. The costs of doing it wrong are really too great!
Click here to go to the Home Page
Generally simple wills are used only in the movies. The family gathers around the lawyer’s conference room table and the lawyer “reads” the will, right!? We have all seen it. The only un-true thing that happens more in movies, relating to someone dying, is they have a video of the person who died (as in the movie Brewster’s Millions). In real life, at least in California, there is no reading of the will and usually no video made either. Plus, most people use a revocable living trust as the centerpiece for their estate plan. However, that’s not to say the simple will is dead… so to speak.
Though we do not do a lot of wills, as the main estate planning document, there are times when simple wills will suffice. Typically it’s for small estates and typically for simple transfers. However, a will is a totally legally binding document and thus can still be used.
Of course if you have a living trust you will have a “pour over” will. That’s the will that says everything “pours” into your trust, after death, if it wasn’t already there. Hopefully all your assets are in your trust before death so that you don’t have to use the pour over will!
However, there are other cases where the old fashioned will still works great. The will is good for distributing your personal property (furniture, jewelry, cars, etc…) and also a place to name a guardian for your kids. Also, it can be a place to cement, in writing, who should get the bulk of your assets which is particularly important if you want to give your assets to someone that is not your “natural” next of kin. Possibly you want to give your estate to a significant other who you are not married to or the son or daughter of a close friend. In those cases a simple will is needed!
Again, a simple will is probably not better than a trust for people that have more significant assets (i.e. any real estate or other assets exceeding $100,000) but a simple will is just fine for a lot of people! It still may require a visit to the probate Court though so make sure you talk to your attorney about your options.
When you get a will you should probably also get a power of attorney for financial affairs (often called a “Durable Power of Attorney”) and also a living will or “Health Care Declaration.” We sometimes do a “nomination of guardian” also as a seperate document. You can also do a Hippa release to help with the ease of medical information release.
Contact me with questions. -John
What documents should your California living trust package have? A lot of clients think a trust is the only document. However, it’s not. Far from it! There are a number of documents that a properly prepared California revocable “living” trust package should have. Here is a brief summary of each:
California Revocable Living Trust – The main document for sure.
Schedule of Assets – Typically attached to the trust but sometimes a separate document showing what assets are “in” the trust.
Pour Over Will – Yes, you still need a will. It’s very basic.
Nomination of Guardians – If you have minors you need a document to appoint guardians. It can be in in your will or a separate document.
Durable Power of Attorney – This covers financial and quasi-financial matters that are not covered by the trust.
Advanced Health Care Directive – This can also be called a “living will” or a Power of Attorney for Health Care.
HIPPA Release – The importance of being able to access your medical records is more important all the time.
Certified Extract of Trust – Some attorneys call it a “certified abstract.” It’s just a summary of the trust.
General Transfer – Not all attorneys agree on this one but to me it’s proper for most clients to have.
Deed – Some use a quitclaim deed and others a grant deed but, in any case, a DEED to transfer your real estate to your trust is important.
Transfer Letters – Sometimes we will prepare letters for banks and financial institutions to aid in the transfer of assets to the trust. In some cases it’s really easier if you can go into the bank in person.
Change of Beneficiary Forms – We will help you complete the needed beneficiary forms to make sure life insurance and other payable on death assets are properly connected to your trust.
Instruction Letter – We give you a letter which summarizes how assets should be owned in the name of the trust and also how beneficiaries should be titled to best carry out your wishes.
Faux Leather Binder – That’s optional and not something we usually do. I am more worried about the quality of the DOCUMENTS than their storage receptacle!
Call me with questions about your estate plan! -John
The other day I was talking to a new client and he told me that he recorded his financial power of attorney with the county because he “had to since he has real estate.” I can only imagine where he got this advice but it’s just simply wrong. It’s wrong for so many reasons. I should clarify he is a new client of mine so he did not get his bad advice from me!
First of all why would you ever want to record an estate planning document which includes all of your family member’s names unless you have to? Though I am not overly concerned about my privacy I certainly do not go out of my way to publish my private information for the world to see when I don’t have to.
Second of all the recording could be done when the document was needed… IF it was ever needed.
Third for a power of attorney to be able to deal with real estate the power of attorney would have to be a “specific power of attorney” which mentions the real property specifically. That is, at a minimum, the address of the parcel needs to be listed and it probably should have the legal description as well like a deed.
Lastly, this client has a trust and the power of attorney has absolutely nothing to do with trust assets. It’s the trust that would deal with a trust asset. Though this is the last point it’s probably the most important and the one people confuse the most. Trusts deal with assets that are actually owned by the trust. Powers of attorney, though similar to a trust, are totally different and only deal with assets that are not in the trust.
I encourage you to find a new attorney if your attorney gave you similar advice that this client received from his former attorney!