A Last Will and Testament is a legal document that outlines how a person wants his or her estate handled when he or she passes away. The person executing a Will names who gets his or her property, who will be left in charge of overseeing the distribution of the property, designates who he or she wants to care for minor children or adult incapacitated children, names charitable gifts, and determines tax planning provisions. If a person dies without having a Will, California laws establish how the deceased individual’s estate is distributed. Typically, a court will oversee this distribution in a process called probate. If a revocable living trust is named as the beneficiary in a Will, the Will is generally called a “Pour Over Will,” because it “pours” the deceased individual’s property into the revocable living trust at his or her death.
A Revocable Living Trust is a contract that can be used to hold legal title to and manage a person’s property and assets. Similar to a Will, a person can name beneficiaries of property and assets and in what manner the beneficiaries will inherit from the property and assets. A person or persons, often the person(s) establishing the trust, is named as the Trustee(s) of the trust to carry out the instructions in the Trust. Revocable Living Trusts also allow the person who creates the trust to make future changes through amendments and even terminate the trust if necessary. A properly funded Revocable Living Trust in California shields an estate from the probate process. A Revocable Living Trust is often used in special needs planning because the trust allows assets to be held or distributed for the benefit of a loved one living with special needs while protecting that individual’s eligibility for governed based benefit programs without the oversight of California Courts.
In California there are two Power of Attorney documents that are essential to every estate plan. These documents are critical to ensuring that if something happens and a person is unable to make healthcare or financial decisions for themselves, the person has already designated another person to act on his or her behalf, or the medical or financial decision has already been made through the documents and the treating physicians or appointed representative must honor the previous decisions. These documents include an Advance Healthcare Directive and a Uniform Statutory Form Power of Attorney (also known as a Financial Power of Attorney).
Advanced estate planning techniques are available and utilized for a number of unique situations. Tax considerations, wealth transfer, transfer of businesses, non-citizens, blended families and families with a loved one living with special needs, among other circumstances, may require additional estate planning devices. In the context of special needs planning, various special needs trusts are often included in a family’s estate plan.