An estate plan allows you to protect, manage and enjoy your assets during your lifetime while minimizing your exposure to unnecessary taxes and liabilities. I should have a plan to manage your financial and health decisions if you find yourself unable to so do (incapacitation) and it should ultimately pass your property and assets to your heirs and beneficiaries in accordance to your wishes and it should be done, privately, efficiently and cost-effectively.
It should at a minimum, include a Living Trust, a Pour-over Will, a Power of Attorney, an Advanced Healthcare Directive and a HIPAA.
Also known as a revocable trust or inter vivos, a living trust is a written legal document that is used to place assets into a trust, for your benefit, throughout your lifetime. Upon your death, your chosen successor trustee acts as a representative, and distributes these assets to designated beneficiaries
A pour-over will ensures that all of your assets are controlled by just one document-the trust document. After all, on the face of it, the basic purpose of the will is to transfer your assets into a trust in order to distribute them to designated beneficiaries. So is a pour-over will redundant? Not at all! A pour-over will ensures clarity, by making it clear whom the designated beneficiaries are. In other words, managing your estate and assets is much simpler when it is controlled by one, single document-a pour-over will.
A pour-over will also ensures that the assets that are transferred into your trust immediately upon your death will remain private. The trust itself is already private, but the pour-over will ensures that additional details regarding assets added into the trust will remain even more so.
A power of attorney in estate planning allows one person to have the authority to act on your behalf. In the state of California, there are two types of powers of attorneys. One is a person who has been given the authority to make crucial healthcare decisions for you, as the creator. The other power of attorney is used for financial purposes, and can manage the creator’s assets in a revocable living trust. These powers of attorneys serve to protect the creator if the creator is incapacitated or no longer able to make decisions for themselves.
An advanced healthcare directive is a legal document that allows you to control the medical decisions related to your care when you are incapacitated. Creating this directive is one of the aspects of estate planning that people tend to put off the longest. Nobody enjoys questioning his or her own mortality! However, this advanced healthcare directive, or living will, is vital when you are no longer able to make certain healthcare related decisions for yourself.
This legal document will make your end-of life or prolonged care wishes clear and precise when you are no longer able to do so. Also, this document protects you and your family if you happen to fall ill, get in an accident, or become incapacitated enough to where family members and doctors need specific guidelines on how to care for you.
A living will clearly outlines the types of medical treatment you want, and gives permission for doctors and family members to perform certain surgeries or experimental procedures on you. Though it may not be pleasant to think about, creating an advanced healthcare directive will protect you and your family.
HIPAA forms are release forms that will disclose your medical and healthcare related information to interested third parties. These are important legal document that can influence the kind of medical decisions that are made on your behalf.
The Health Insurance Portability and Accountability Act, passed in 1996, aimed to protect individual healthcare and medical information. Under this law, healthcare providers are prohibited from releasing your medical information to third parties, unless you authorize them to do so, via a release form.
Just about everyone! If you live in California and you own a home that is worth $50,000 or more or if you have personal property worth $150,000 or more, regardless to if you have a will, your estate could be subject to complex probate.
Probate is the court-supervised process, where the probate court analyzes and proves the validity of the decedent’s will, appraises the value of the estate, and administers the decedent’s estate for the benefit of the beneficiaries. This process can take anywhere from 9 months to 2-4 years during which time the assets are frozen and the fess are dictated by the state.
The Living Revocable Trust (Intervivos Trust) avoids probate by transferring titles using the operation of law, to the trustee of the trust. This involves no court involvement whatsoever. The trustee is then obligated to transfer assets for the benefit of the beneficiaries of the trust.
Besides avoiding the hassles of the involvement of probate courts, mentioned above, a properly drafted Living Trust is valid in all 50 states in America, (46 states and four commonwealths). The Living Trust is also private and does not need to be recorded by the county recorder or government.
As long as it has the basic attributes of a trust, such as a trustor, trustee, beneficiary, and corpus, the Living Trust is valid and legally binding. It is also endowed with advantages under tax law, including allowing married couples to preserve their rights to specific tax exemptions. Unlike a Will, a trust also provides for estate administration during periods where the creator may be incipaciated and unable to administer the trust without assistance.
The Living Trust is not a liability shield. The trust may afford the creators additional privacy and will make it more difficult for creditors to locate specific assets, but trustees who are in charge of their own trust will still be subject to the creators’ creditors, if there are any.
All assets, which are not exempt from probate, according to the probate code, should be transferred into the trust. This includes real estate, bank accounts, certificates of deposit, money market funds, mutual funds, stocks, bonds, limited partnerships, corporations, sole proprietorships, and all personal property.
Personal properly does exclude, however, IRA’s, 401 K’s, insurance policies, automobiles, qualified retirement plans, IRA’s, and other examples. These specific assets already have named beneficiaries. However, it is recommended that the trust be named as a secondary beneficiary, even for assets that already have a primary beneficiary named, such as IRA’s, and certain insurance policies.
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