Wills, Trusts, and Probate Lawyers in Sacramento, CA
One of the primary areas of practice in our office is Estate Planning. We have extensive experience in compassionately helping you prepare for the important life decisions you need to make before you are gone. You have worked hard and spent your entire life acquiring your money and property so it makes good sense that you have a say in what will happen to it after your death. Rather than pushing the reality of death aside, it is important that you consider and plan for it because it will significantly affect the lives of the loved ones you leave behind. Estate Planning is just that, making good decisions and plans about your estate and as a result, it can help your estate avoid conflicts and legal battles
Estate planning documents include Will, Living Trust, Durable Power of Attorney, and Power of Attorney for Healthcare. Depending upon the value of your assets, you will first need to decide whether you would like to create a Will or a Trust. Either will designate to whom you would like your property to go to upon your death.
Though a Trust is usually advised as a first choice, if you do not own any real property or your total assets are under $150,000, then a Will may suffice for your estate planning needs. The difference between a Will and a Trust is that upon death, if your assets are appraised at more than $150,000, your estate property will be probated if you have a Will, however it will simply be transferred outside of Court supervision to the designated beneficiary if you have a Trust. You may exclude from federal gift taxes up to $5,450,000 as per 2016. On the other hand, if your gross estate is over a million dollars and you create only a Will, your estate tax could be close to fifty percent (50%). If your beneficiaries and/or children dispute the Will, Attorneys Fees and costs can skyrocket in the lengthy probate process, which takes six (6) months at the very minimum.
For this reason, creation of a Trust is strongly recommended in all cases, and especially if your assets total more than $150,000. When you create a Trust, all of your real property, vehicles, and substantial bank accounts can be transferred into the name of the Trust, which makes it infinitely easier for your beneficiaries to handle the property as you have designated after your death. Unless specifically designated as Irrevocable, the majority of Trusts are Revocable, which means if you change your mind later as to who you would like to inherit your property, or if you would like to add property or take property out of your trust, you can easily do so using a Trust Amendment. In addition, wording in the Trust discourages legal action, and can disinherit anyone who seeks to challenge your estate planning decisions in Court, thus Attorneys Fees and costs are nonexistent or very minimal. Most importantly, Trusts can limit estate taxes, so your beneficiaries inherit ALL or the property you left to them, not half of that property or less. There is absolutely no reason not to create a Trust once all factors are considered.
In addition to a Will or Trust, it is very important to create both a Durable Power of Attorney for Financial Transactions, as well as a Durable Power of Attorney for Healthcare. These documents will specify your wishes in the event of incapacity. The Durable Power of Attorney for Financial Transactions designates who you would like to handle your financial affairs, including banking account transactions, stocks and bonds transactions, real and personal property transactions, business transactions, etc. In general, people tend to name either their spouse, a child or sibling, business partner, or close friend as their Attorney-in-Fact. You can also limit the Durable Power of Attorney so that your designated Attorney-in-Fact can handle only certain, specified transactions for you.
The Durable Power of Attorney for Healthcare is also of great importance, and the media has highlighted this importance in the past few decades. Karen Ann Quinlan, whose story made news in the late 1970’s and 1980’s, suffered irreversible brain damage after an extended period of respiratory failure and was diagnosed as being in a persistent vegetative state. Her family kept her alive, however, and she was given nutrition by artificial means for over nine (9) years while in a coma, until she eventually died of pneumonia. Terri Shiavo shared a similar story more recently. She remained in a persistent vegetative state from 1990 until 2005, when she was finally taken off artificial nutrition. Over the course of about seven years, Terri’s husband battled her parents in Court in what became an infamous legal battle involving fourteen appeals in addition to numerous hearings, motions, and petitions at the Florida State level, as well five Federal lawsuits. What was debated was whether or not Terri had wished to have life-prolonging treatment. Her husband claimed Terri expressed she would not want such treatment, but Terri never created a Durable Power of Attorney for Healthcare to finalize her decision. The absence of a Power of Attorney created 15 years of suffering for her family, and amounted to millions of dollars in legal fees and Court costs. All of this heartache could have been avoided with the creation of a simple document.
The Durable Power of Attorney for Healthcare designates first who you would like to make healthcare decisions for you in the event you are incapacitated (i.e. if you are in a coma). Again, most people name their spouse, a child or sibling, or close friend as their Attorney-in-Fact for healthcare decisions. The Durable Power of Attorney for Healthcare also specifies your wishes upon your incapacitation and death. In the document, you may specify whether or not you would like to remain on life support, whether you would like to donate your organs, and your preference for either burial or cremation, in addition to any other special designations you would like to make.
Every adult should create a Durable Power of Attorney for Healthcare to avoid repeating the stories of Karen Ann Quinlan and Terri Shiavo. Further, doing so usually avoids the Court system of Probate law under a conservatorship, which is usually required if there are no Durable Powers of Attorney and no inter vivos or Revocable Trust.
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