What will happen to the property I won when I die? Will there be someone besides a doctor who makes critical health care decisions for me when I’m ill? How do I protect my family if I’m not physically here? These are questions every person with either assets or a family should be asking.
There are legal, insurance and financial planning answers to these questions. Since we’re a law firm, this article will explore how to deal with the legal aspects of these questions.
The basic estate planning document is a will. A will is simply a written instruction to a trusted person, called an executor, to carry out certain instructions of yours after your death.
Typical subjects of wills include who is to get your property, whether or not your immediate family and heirs survive you , how your remains are to be disposed of, who is to have guardianship of your minor children if neither parent is alive, and how your estate is to be distributed to heirs who are to yet adults.
The major drawback to a will is that its instructions are usually carried out under the supervision of the Superior Court, during a process, called probate, which takes at least six months. No distributions to heirs are possible before the initial six months, unless there is dire need.
The major advantage to a will is that all of its instructions take effect after your death, and have no effect until then. You are free to make amendments, and they do not have the effect of a promise.
There us a superstition that writing a will hastens your demise. But most of the wills I’ve written are by clients to have the strong purpose of protecting their families and who know that a well drawn will, like life insurance, is an integral part of planning for the family’s future.
There are many ways to prepare a will. You can download the “California Statutory Will” at www.calbar.ca.gov/calbar/pdfs/publications/Will-Form.pdf and it will suffice for many. Or you can use its basic form and handwrite your will. A handwritten or holographic will must be ALL in your handwriting, and must be dated and signed.
Or you can have McNally & Crowder prepare your will, especially if there are special or unusual provisions. The average cost of a will is $300 to $600, and can be done in one or two visits.
For estates up to $20,000 in value, the statutory or handwritten will should suffice. For estates up to $100,000, a professionally prepared will can help one avoid a full-blown probate proceeding. For estates over $100,000 and persons who are not retired, a professional will, combined with the taking of property in “community property with rights of survivorship” should be enough. (We can change the title of your real property for $100, as this can have a major tax effect when you sell.)
Then there is the issue of, “Who will make health care decisions for me if I can’t make them myself?” Doctors are supposed to save lives at all costs, even if it means extensive operations, the use of heavy drugs with possible side effects, and the use of cumbersome machines.
A Patient’s desire to avoid possibly crippling operations, drug die effects and being tied to a machine will not be respected if those desires aren’t communicated to the hospital staff. While your spouse’s instructions will be respected, those of other family and friends will not-unless there is an Advanced Health Care Directive. This AHCD, Which takes the place of the former “durable health care Power of attorney” and the “living will,” is designed to allow you to make your wishes known, whether you can state them or not.
It answers such questions as what medical procedures or tests you want used, of not used, who are your agents, who are your health care providers, whether or not you want extraordinary care in the event your condition is terminal.
Of special interest in the days after the new consumer privacy protections for medical records in HIPAA ( the Health Insurance Portability and Accountability Act) is that an AHCD governs your health care agent’s access to your medical records. Hospitals are (justly) terrified of these new regulations and without written authorization, you will not be able to access a loved one’s health care records.
You can find a “PDF” version of the AHCD on the Internet at the California Healthcare Associations’s website: www.pamf.org/preventive/PAMF_AdvanceDirective.pdf. Note this form must be signed and witnesses by persons not names in the AHCD, not in your family and not in the health care field-or it is not valid.
Our recommendation is that you have mcnally & crowder llp prepare this form. Not only will it be correctly witnessed, but you r privacy will continue to be protected. The cost is about $300, or less if prepared with other estate planning documents, such as a will or a living trust.
We recommend an Advanced Health Care Directive to anyone, regardless of age or relationship status, who is concerned about the quality of his or her health care.
Clients often ask us whether or not they should have us prepare a will, or a living trust. Our usual answer is that when a person is still working, the odds of their death are extremely small, and that a will is the most cost-effective way of providing peace of mind that one’s family has been protected in the event of untimely demise.
However, the situation changes when a person retires. Usually at this time new major assets are not being acquired or sold, and the advancing age makes less certain the quality of one’s health. Children are grown and possibly creating families of their own.
At this time, the focus shifts to ensuring an orderly transition in the event of one’s death. A court-supervised probate, as mentioned earlier, will take at least six months, and can often take more than a year, if there are complexities in the estate.