If you are asking this question, you have probably heard quite a bit about what going through probate is like - or you have been forced to endure the process yourself to settle a loved one’s estate. So you know that going through full probate is an arduous process. The fees and costs involved can seem astronomical, especially if you have to hire appraisers, fend off a pointless contest, or handle any of the other hurdles that can pop up during probate. You may now be wondering if there is a way that you can avoid putting your loved ones through probate in your own estate plan. Fortunately, there is. By using a living trust, you can bypass the probate courts entirely. Your beneficiaries will appreciate it - and there may be benefits of using a trust during your own lifetime.

How Does Using a Trust Let My Beneficiaries Skip Probate?

A trust is an excellent alternative to a will. When you create a trust, you fund it by transferring ownership of some or all of your property to the trust.

Do not worry, this does not mean that you lose control of your money or property. You can declare yourself the trustee of your trust and authorize yourself to make distributions from the trust at your own discretion. Essentially, so long as you use a revocable trust, you can do whatever you please with the property you have funded your trust with.

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.

You may or may not have heard the term “holographic will” before. No, it is not a high-tech device that presents your final wishes using a hologram. Rather, a holographic will is a handwritten will made and executed by the testator alone. It need not comply with all the legal formalities required to make any other type of will, such as being witnessed by two people.

As you can imagine, there are a lot of ways for this to go wrong. Holographic wills are generally used only in emergency situations where the testator knows that they are dying and do not have the time or ability to find a lawyer and create a formal will. Really, a holographic will should never be used if you can avoid it. It can be extremely difficult to prove that these documents are valid and extremely easy to successfully challenge one. Your best bet is to work with an estate planning attorney rather than taking a DIY approach to such an important legal matter.

Why is Making a Holographic Will Not a Good Idea?

In many ways, creating a valid and enforceable holographic will is much more difficult than making a will in a lawyer’s office. The only time you should consider doing this is if you are facing imminent death and you have absolutely no other option. If you have been stranded in the desert for a week with little hope of rescue, it may be worth a shot. Otherwise, it probably is not a good idea.

Many people, especially when they are young, regard estate planning and the preparation of a living will as something that can wait or something that is only for older or infirm individuals. The reality is that medical emergencies can happen at any time. When a medical crisis strikes, your loved ones may be unsure about the level of care and lifesaving treatment that you may want. Each person should have a living will or advance health care directive, which can clearly specify their desired medical care and gives decision-making power to a person they choose through a medical power of attorney. The attorneys of Law Office of David Schechet will work to prepare documents that address each client's specific needs.

Benefits of a Medical Power of Attorney in California

When you grant someone power of attorney, you are giving them the legal right to make decisions in your name. Powers of attorney can cover financial management, legal and business matters, and medical care. While some, like a financial power of attorney, can take effect at any time of your choosing, a medical power of attorney typically only takes effect when you are incapacitated and unable to make decisions about your medical care and treatment.

The person you give the power of attorney should be someone you trust, such as a spouse, child, brother or sister, parent, or trusted friend since they will have the ability to make the same decisions about your health care that you would have yourself. This can include decisions on whether you should undergo surgery, medication, and treatment your doctors should provide, and which health care providers should be responsible for your care. To guide the person through your preferred treatments, you will prepare a living will or advanced health care directive. This document explains your preferences for care, treatment, and if necessary, which life-sustaining procedures you would like performed including ventilation, feeding, dialysis, and resuscitation. For end-of-life decisions, your living will can also contain a Do Not Resuscitate (DNR) order and a Physician's Order for Life-Sustaining Treatment (POLST), which will avoid the person with the power of attorney from having to make these decisions without your guidance.