Your Estate Planning Documents
Your estate plan will include several of the following documents. Don’t worry about preparing for your first meeting with us. All you have to do is show up and we will do the hard work. You can see the easy steps on Our Process page. At all times you will be in control and your wishes will be reflected in all of these documents.
LIVING TRUST: A trust is simply an arrangement where you (we call you the trustee) holds a legal title to valuable property (we call them assets) for another person (they are called the beneficiary). Simply put, the living trust we create for you is a signed and notarized legal document that lists your property and who you want to give it to when you die. It’s called a living trust because it lives on after your death. You will be the trustee of your own living trust, which means that you keep full control over all property listed “held” in trust for as long as you live. Your trust is the way you can record all your wishes and make sure they are carried out.
You can change your trust at any time, and it’s important to review your trust anytime your assets, or your wishes, change. Your trust will designate someone (your successor trustee) who will take care of your trust after you are gone, and make sure your wishes are carried out and it contains all the instructions your successor trustee will need to properly distribute your assets to the correct beneficiaries.
There is an important privacy issue you should be aware of in probate. If you rely on only using a will to distribute your assets to your beneficiaries, your information will be made public. All of your documents that are submitted to the probate court, including your will and inventories of your assets and debts, become a matter of public record. This is a big privacy concern for a lot of people. Living trusts remain private, and also allows you to avoid probate.
When you die, the assets in the trust will then pass to the people you have listed as beneficiaries. The good part is that your beneficiaries will get your assets right away, completely avoiding the lengthy wait and considerable expense of probate. A living trust means your beneficiaries don’t have to go through the mess of probate. We like to think that’s the compassionate way to plan for the future.
REVOCABLE LIVING TRUST: Most living trusts are “revocable” living trusts because you can change your trust at any time, and it’s important to review your trust anytime your assets, or your wishes change. You can even revoke them completely so they don’t exist anymore.
WILL: A will is a legal document that says who will inherit your property when you die. Wills are not notarized, but California requires that a will be witnessed by two people for it to be valid in the eyes of the law. If you don’t use a will, or some other legal method to transfer your property when you die, state law determines what happens to your possessions, and your estate will go through probate.
Wills are used along with living trusts in most estate plans. You can think of them as kind of a backup plan for the living trust. Imagine that you won a big lottery prize and died from the excitement. Those winnings would not be covered by your living trust so they would go through probate before your loved ones could inherit the money. They would probably have to wait six months to a year, and lose a significant percentage to legal and court fees. If you named someone in your will to receive any of your assets that aren’t covered by your living trust, they would get the asset without going through probate. You could also include instructions in your will for how these additional assets are divided among your beneficiaries. This way your wishes will be followed.
A will serves other purposes as well:
- You can name alternate people to inherit your property in case your first choices die before you
- You can name an executor, who will oversee the distribution of your property after you die
PROBATE: Probate is a heavily procedure based legal process that is very costly, and usually takes at least six months to a year to complete. During probate, the court decides how to pay your debts, how to distribute your property, and who will inherit it. That translates to lots and lots of legal forms that have to be prepared, and rigid deadlines that must be strictly adhered to. As for the cost, it’s not unusual for up to 5% of your remaining property (after debts are paid) to be eaten up by attorney and court fees. Whatever wishes you had for your legacy will be ignored if they are not captured in a legal document.
You can read more on our Probate page.
DURABLE POWER OF ATTORNEY: A power of attorney is a legal document that lets you name a trusted person who will have the power to act for you, and make decisions for you, when you are not mentally or physically able to act for yourself. They call them durable because the document remains in effect even though you are incapacitated and unable to act on your own. Ordinary powers of attorney are not durable because they automatically end if the person who makes them loses the mental capacity to act.
There are usually two types of durable powers of attorney that allow someone to make decisions for you regarding either medical health care issues, or financial issues. It’s recommended that you have both of these documents in place. You can name the same person for both powers of attorney if you wish, but separate documents will keep privileged medical information away from people who only need to know financial details, and vice versa.
FINANCIAL POWER OF ATTORNEY: Simple financial powers of attorney are often used for single transactions, like real estate transactions. A durable power of attorney for finances is a more complex legal document that lets you decide who can make all your financial decisions for you, when you are unable to do so. They can pay your bills, hire people to provide services for you, etc.
HEALTH CARE DIRECTIVE: The health care directive is a legal document that lets you decide who can oversee your medical care and make health care decisions for you, when you are unable to do so. That trusted person is called your health care agent. You can specify exactly what kinds of health care and medical treatments you want performed on you and whether or not you want life sustaining treatment.
Your health care agent can talk to the doctors and other health care providers and they must treat your agent the same way they would treat you. Your agent has the legal power to insure you receive precisely the medical care you specify, and is legally bound to follow the wishes you specify in your health care directive.
DEED: A deed is a legal document that lets you transfer ownership of real property, like a house. A deed must contain several items to be valid:
• It must list the names of the current owner(s) and the new owner(s)
• It must be signed by the current owner(s)
• It must contain the exact legal description of the real property that is being transferred
There are several types of deeds and you can read more about them on our Deeds page.