Basic Estate Planning is about control. It is about control both during our lifetimes and after. It is about control for ourselves and for our families. Every day we control the assets we have without thinking about. We sign our names and key in our pins and passwords. We can only maintain control for ourselves and our families through disability and illness through estate planning.
During our lifetimes, basic estate planning is about making certain that our affairs can be managed, even if we temporarily cannot manage them ourselves. It is also to maintain control of our own bodies so that no medical treatment that we might want is denied and no unwanted medical treatment imposed by strangers, hospital administrators or the government. We can only insure that our wishes are followed and our families protected after our deaths through estate planning. Of near equal importance is that basic estate planning shields our families from excessive government involvement in our personal and financial affairs. From our offices in San Diego County, the Weissler Law Group serves clients living throughout California. Through our main office, centrally located in the Mission Valley area of San Diego, California, and through our Satellite office, located in San Marcos, California, we help clients gain and maintain control.
Providing for Incapacity
When someone becomes incapacitated they cannot manage their own financial affairs. Many mistakenly believe that their spouse or adult children can automatically take over for them in case they become incapacitated. The truth is that without proper estate planning documents in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent. This process can be lengthy, costly and stressful. Even if the court appoints the person you would have chosen, they may have to come back to the court over and over again and show how they are spending and investing each and every penny. If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home. A will does not take effect until you die and a power of attorney may be insufficient.
In addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care. The law allows you to appoint someone you trust - for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself. You can do this by using a durable power of attorney for health care (also called an Advance Directive) within which you designate your chosen representative to make such decisions for you. In addition to a power of attorney for heath care, you should also have a financial durable power of attorney which becomes effective if you are incapacitate and empowers your spouse, or any other person you have chosen, to sign ordinary documents on your behalf.
Avoiding Probate
If you leave your estate to your loved ones using a will, everything you own will pass through probate. Here in Southern California the process is not only expensive, time consuming and open to the public, but is also frustratingly slow and lengthy. After a death leaving behind only a will without other estate planning structures the probate court is in control of the process until the estate has been settled and distributed. If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. It is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate. Your surviving spouse may be forced to apply to the probate court for needed cash to pay current living expenses. You can imagine how stressful this process can be. With proper planning, your assets can pass on to your loved ones without undergoing probate, in a manner that is quick, inexpensive and private.
Providing for Minor Children
It is important that your estate plan address issues regarding the upbringing of your children. If your children are young, you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children, without the burden of work obligations. You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters. You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time. A contingency plan should provide for persons you’d like to manage your assets as well as the guardian you’d like to nominate for the upbringing of your children. The person, or trustee in charge of the finances need not be the same person as the guardian. In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances. Otherwise, the decision as to who will manage your finances and raise your children will be left to a court of law. Even if you are lucky enough to have the person or persons you would have wanted selected by the court, they may have undue burdens and restrictions placed on them by the court, such as having to provide annual accounting.
Planning for Death Taxes
Whether there will be any federal estate tax to pay depends on the size of your estate and how your estate plan works. Many states have their own separate estate and inheritance taxes that you need to be aware of. Fortunately, California does not have its own separate estate or inheritance tax. There are many well-established strategies that can be implemented to reduce or eliminate death taxes, but you must start the planning process early in order to implement many of these plans.
Charitable Bequests – Planned Giving
Do you want to benefit a charitable organization or cause? Your estate plan can provide for such organizations in variety of ways, either during lifetime or at death. Depending on how planned giving is set up, it may also let receive stream income life, earn higher investment yield, reduce capital gains taxes.
A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding conservatorship during your lifetime, probate at death, estate taxes and unnecessary delays. You should consult a qualified estate planning attorney to review your family and financial situation, your goals and explain the various options available to you. Once your estate plan is in place, you will have peace of mind knowing that you have provided for yourself and your family in case the worst happens. |