As we mentioned in our last blog post, having an estate plan in place can go a long way toward protecting both you and your loved ones. It is also important to discuss what can happen if you pass away without an estate plan. While creating a trust leaves you - and later, your chosen trustee - in control, you will have no say in what happens to your estate should you pass away without a plan. Your family members will have no choice but to go through probate. Probate is long, complicated, and often costly. However, going through it is the only way to distribute a decedent’s assets in the absence of an estate plan. Avoiding intestate probate is perhaps one of the greatest benefits of estate planning.

Consequences of Dying Without an Estate Plan

Those who pass away without an estate plan are termed “intestate.” During intestate probate, your family members will likely need to hire an attorney to guide the process. Because you did not leave any instructions for how your property should be distributed, California state law will control who gets what. Our state’s intestacy laws favor immediate relatives - mainly your spouse and children, or sometimes your parents.

Your closest relatives may or may not be the ones you want to inherit your entire estate. Unfortunately, intestacy law does not care if you have not spoken to your adult son in over 20 years, or whether you are estranged from your spouse.

If you are a competent adult, you should have an estate plan. Whether you are single or married, a parent or childfree, healthy or ill, young or old, you need an estate plan. Life is unpredictable. As much as we all wish that only elderly people in poor health passed away, we know that this is not the reality of life. No one knows when they will pass away or become incapacitated. Having both a testamentary plan and an incapacity plan in place can help reduce the distress your loved ones will experience should the worse come to worst. Doing this type of planning can also help ensure that your personal beliefs and wishes would be respected should you find yourself in a situation like a coma where you could not speak for yourself. Our lawyers can work with you to help you decide which documents you need given your current personal situation.

The Benefits of Estate Planning for All

Thinking about what your closest loved ones would go through if you were to pass away unexpectedly is not comfortable for anyone. Thinking about what you might go through if you were alive, but incapacitated, is not comfortable either. However, once you have an estate plan in place, you can stop worrying about these unlikely events, knowing that you and your loved ones would be protected. Benefits of making an estate plan for all include:

• Deciding property distribution - Even if you do not own much of any valuable property, many of your possessions are likely to hold significant sentimental value for your loved ones. You know that you would want the friend who was with you when you caught the ball at a major league game to keep the ball if you passed away, but the person who would likely inherit your estate by default may not.
• Reducing distress to loved ones - Having a strong estate plan in place can take some of the burdens of dealing with your property off your loved ones if the unexpected happened. With an estate plan, they are likely to have an easier time distributing your property. This way, they will also have the comfort of knowing that your wishes are being respected instead of having to guess what you would want.
• Incapacity protection - Many adults have strong opinions about what they would want were they to be left in a permanent vegetative state or experience another form of mental incapacity. Documents like a living will and powers of attorney allow you to make certain decisions in advance.

It does not take all that long to form an estate plan for most people. If you find it unpleasant, we can help you accomplish the task expediently so that you can go back to much happier thoughts, assured that you and your loved ones are protected.

In estate litigation, there is a problem known as the “worst evidence rule.” When there is any legal dispute over a trust, will, living will, or power of attorney, the only person who is guaranteed to know what these documents mean is generally either dead or incapacitated. In neither event can the individual who executed the document hop up on the witness stand and clear things up - nor can they guide others to where they have placed these important documents. This is why it is critical that all estate and incapacity planning documents are well in order before any precipitating event kicks them into effect. One of the best ways to make sure the plan you put time and money into creating will be enforced is to work with an attorney and follow their advice.

How Can I Make Sure My Estate and Incapacity Plans Are Enforced?

There are a few steps you can take to increase the likelihood that the plan you made is going to be carried out. For starters, make sure that your documents are very clear. Using precise, unambiguous language is extremely important. A good attorney will know how to write out these documents in a way that prevents confusion.

It is also a good idea to spread the word about what you have done. If you make a will or trust and then shove it in a closet - or worse, a locked safe - without telling anyone, you run the risk that your loved ones will assume that you are intestate and proceed accordingly. It could take months for anyone to find your testamentary documents - at which point you have created more of a mess than anything.

The trope of a person who is sick and elderly, perhaps on their death bed, calling an attorney to make a will at the last possible second is best left to movies and TV. In reality, the best time to do all your estate planning is while you are young and healthy. A lot of younger adults do not consider estate planning a necessity for a variety of reasons, a big one being that they do not expect to die or become incapacitated for many years to come. However, over the past two years, it has become clear that life can be quite unpredictable. A complete estate plan, comprised of both incapacity planning documents like a living will and testamentary documents, like a regular will, can lend some predictability and stability to a potentially chaotic situation.

If I am Young and Healthy, Why Should I Have an Estate Plan?

It is not unreasonable that many younger adults find the entire subject a bit saddening. It can be particularly difficult for young people to consider their mortality, or to consider the possibility that they could become incapacitated. However, it is wise to do so. Reasons that young healthy people also need estate plans include:

• Temporary incapacity - We often think of age-related conditions, like dementia, in this area. However, temporary incapacity can happen to young people due to an injury or illness. In the event that you get hurt in a car accident, or sick with COVID, and cannot speak for yourself, you will be glad to have powers of attorney designating the person you would like to make decisions on your behalf and a living will. These documents may look different for young people, who may want more intensive forms of medical care than someone who has less chance of recovery.
• Family concerns - The unexpected death of a younger person can shake up a family in ways that the expected passing of an elderly relative would not. The lack of an estate plan can complicate the situation, leading to additional difficulties and sometimes conflict.
• Minor children - Young parents should always have an estate plan in place that protects their children. No parent wants to think of their child growing up without them, but it is better to know that your children would be well cared for.
• Conflict avoidance - When a person is incapacitated, they must rely on others to speak for them. When no one individual has been named in a power of attorney, families may have serious disagreements over how the situation should be addressed. Your parents or other relatives may have conflicting religious or moral beliefs regarding life-preserving treatment. Especially if you had not made your wishes well-known, this can lead to significant conflict and even litigation.

Even if you are young and healthy, things can change very quickly. Families and individuals alike are protected when everyone has an estate plan in place, regardless of age or health.

Nowadays, trusts, rather than wills, are the predominant way posthumous transfers are made. Trusts offer a number of benefits, but avoiding probate is often at the top of the list. There are pitfalls to living trusts, however. One is that the trust can only control property that it owns, so any assets that have not been transferred to the trust at the time of the grantor’s death may be out of its reach. Pour-over wills can be used as a sort of failsafe on a trust by posthumously transferring the grantor’s remaining assets into the trust. If you are unsure whether your estate plan needs a pour-over will, you should consult with a local attorney.

How Do Pour-Over Wills Work?

Pour-over wills exist to back up a trust. When the grantor of a trust dies, any assets of his that have not made their way into a trust already cannot be governed by the trust. A pour-over will simply exist to gather up and control any assets that were left out of the trust for whatever reason. Using a pour-over will, the testator devises all his remaining non-trust property to the trust.

This can be extraordinarily useful when it is discovered after death that the decedent owned property he had forgotten about, or never became aware of in the first place. It is more common than one might think for assets to be inadvertently omitted from a trust. People may forget about an old bank account or own estate property from a long-dead relative they never found out about. A pour-over will simply offers a bit of extra security in making sure that all the property a grantor wanted to be included in a trust will be included.