New Will
We will provide you (and your spouse, if applicable) with a new will, commonly referred to as a “pour over will”, the primary purposes of which are to (1) distribute any assets owned in your individual name to your trust, and (2) provide for burial or other instructions. Of course, we will assist you in the transfer of your assets into your living trust (see Deeds and Transfers below), which should avoid the need for probate of your estate, and in many cases, the will should not have to be admitted into any court proceedings. However, we prepare wills as a “fail safe” device to channel any assets not held in a living trust as of the time of death. In order to avoid probate, we advise our clients to hold title to all of their assets in their living trust, with the exception of IRA, 401(k), pension and profit sharing plan and other retirement plan accounts, which for estate tax reasons are generally not held in a living trust (only a spouse may do a “roll-over” into an IRA account).
Advanced Health Care Directive
Many persons have made no provision for health care instructions if they become incapacitated, or have an outdated form that is no longer used in California. We provide our clients with the current California statutory form of Advanced Health Care Directive (under California Probate Code Section 4701), which lets their physicians, family and friends know their health care and end of life decisions, organ donation preferences, and designated conservators. It also allows individuals to appoint agents who have power of attorney to make care and treatment decisions on their behalf, and give instructions about their health care wishes.
Durable Power of Attorney – Business Matters
Generally, powers of attorney are effective only during times when the principal is competent and able to give instructions to the agent. In situations where a person becomes unable to direct his or her own business affairs, Durable Powers of Attorney – Business Matters are very useful. These documents become effective only upon a person becoming incapacitated and ceases to be effective when the person gets better or dies.
General Grant and Assignment
Living trusts are only effective in avoiding probate when funded with a person’s assets. To the extent that assets are not held in the name of the living trust, a probate court proceeding may be needed in order to distribute those assets to the designated beneficiaries. One of the documents included in our estate plans is a form of General Grant and Assignment, the purpose of which is to act as a “catch all” document that transfers all assets and properties (with the exceptions notes above regarding retirement plan accounts) into the living trust. The General Grant and Assignment is not sufficient to transfer real estate, bank accounts, stock brokerage accounts, and certain other assets into a living trust. Upon request, we assist our clients in moving all appropriate assets into their living trusts.
HIPAA Documents
This document authorizes persons designated in the form to receive your confidential health care information if you become incapacitated and unable to act for yourself. “HIPAA” is short for the United States Health Insurance Portability and Accountability Act, which was enacted by Congress in 1996 and has revolutionized the way medical information can be disseminated in the U.S.
Deeds and Assignments
An Updated General Grant and Assignment (see above) is insufficient of itself to transfer title to real estate and bank and stock brokerage accounts to a living trust. Upon request we assist our clients in preparing deeds that transfer their interests in real property to their living trusts, and we inform our clients how they may hold their bank accounts and stock brokerage accounts in their trusts.