Common Estate Planning Questions
What is the number one reason people do not adequately plan their estate?
It requires facing their own mortality. Often, responsible, smart, able minded people often forego setting up any type of estate plan, which often leads to unnecessary pain and conflict for their loved ones.
Why should I try to avoid probate?
Probate is the court procedure for proving a Will, paying the estate’s bills, and distributing the estate. The problem is that the probate process can be expensive, time consuming, and frustrating. Furthermore, it is a public process, so the size and contents of your estate will be widely available information.
Most of my property will pass through a will, right?
Actually, in most estates property passes through a variety of methods:
- Joint Tenancy – Automatically gives the property to the survivor regardless of what the will states.
- Life Insurance – Gives the policy to the beneficiary, unless the owner of the policy is married and in California, then one half will go to the surviving spouse regardless of what the will states.
- Pay on Death Bank or Stock Accounts (Totten Trusts) – Automatically goes to the beneficiary on the account regardless what the will states.
- IRA and other Retirement Accounts – Automatically goes to the beneficiary, and if there is no beneficiary listed, then it will go to whoever is designated in the retirement plan. This could be the estate or someone else—such as a spouse or child.
- Property funded in a Trust – Automatically goes to the beneficiaries of the trust regardless of what the will states.
- Community Property – In California regardless what the will says only ½ of the community property will go the way the married person states in a will. The other ½ will go to the spouse.
Who will be making my decisions if something happens to me and I am incapacitated?
Without appropriate legal documents to manage your assets and dictate your medical wishes during incapacity, a court supervised conservatorship is probable, which can be expensive and time consuming. To avoid such an event consider a Durable Power of Attorney and an Advanced Healthcare Directive.
I heard about putting my pet in my estate plan. What should I consider?
You should think about creating a Pet Trust, and consider the following:
- The Pet – Which pet, or pets, are to be provided for by the pet trust?
- The Care – What kind of care are you providing for?
- The Trustee – Who can you rely on to handle the trust funds and watch over the treatment that the caregiver is providing your pet?
- The Caregiver – Who can you trust to provide loving care to your pet and watch out for its well being?
- Afterward – After your pet, or pets, pass on, what would you like to happen to your pet’s remains and the remainder of the trust funds?
What powers are lost by a conservatee?
The power to: contract; sell, transfer, or convey property; make gifts; incur debts (except in limited circumstances); delegate a power (e.g., make a durable power of attorney); waive rights; serve as a fiduciary (e.g., act as a trustee or executor).
What powers are retained by a conservatee?
The power to: make a will; vote; give informed consent for medical treatment; marry, seek separate maintenance, divorce, or annulment; contract to the extent necessary to provide your family with the necessaries of life; control an allowance, wage, or salary.
Who should be nominated as the conservator of an estate?
- Spouse or relative
- Lawyer
- Financial Professionals (e.g., accountant, business associate, financial planner, stockbroker, investment counselor)
- Bank or Trust Company
- Professional Conservator Other than a Bank or Trust Department
- Public Guardian
- Nonprofit Charitable Organizations