Fullerton Elder Law FAQ
Your Questions Answered by Our Elder Law Attorneys
Elder law is a complex area of the law that can prove challenging to navigate without the insight and advice of a trusted attorney. At OC Elder Law, we strive to educate our clients and help them understand the laws and policies that govern the legal matters they are facing. Below, we have answered some of the most common questions about elder law, estate planning, probate, and related matters.
What is probate?
Probate is the court and process that looks after people who cannot make their own personal, health care, and financial decisions. These people fall into three general categories: minor children (under age 18 in most states), incapacitated adults, and people who have died without legal arrangements to avoid probate.
Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate to save money, spare their heirs the legal hassle, and keep their personal affairs private.
What is joint tenancy with rights of survivorship?
This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate when the first spouse passes away. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces, and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on a married couple’s estate.
What is a will?
A will is the document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the will maker dies and the original will is delivered to the probate court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets to your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.
What is a living will?
Sometimes called an advance medical directive, a living will allows you to state your wishes regarding your end-of-life care in the event that you cannot express your wishes yourself. In your living will, you can describe what types of medical life support measures you wish to have or decline certain measures if you have a terminal condition. Often, a living will is executed along with a durable power of attorney for health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
What does intestacy mean?
If you die without even a will (intestate), California legislation has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70% of Americans currently use it.
What are beneficiary designations?
You may avoid probate on the transfer of some assets at your death through beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
What is a durable power of attorney and when do I need one?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, you and your family will be involved in a guardianship or conservatorship case. This is the court proceeding where a judge determines who should make these decisions for you under the court’s ongoing supervision
What is a revocable living trust?
This is an agreement between three parties: the trust-makers, the trustees (or trust managers), and the trust beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage the assets transferred to the trust, and have full use and enjoyment of the trust assets as beneficiaries. Further, “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or pass away. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trust maker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The revocable living trust may allow them to accomplish all this outside of any court proceeding.
Who should have a revocable living trust?
Whether you are young or old, rich or poor, married or single, if you owned titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all your assets together under one plan.