Estate planning is the process of meeting with an attorney who creates legal documents that clearly communicate and document your end-of-life wishes, including what happens if you become incapacitated and are unable to make medical or financial decisions for yourself. Estate planning is a good idea for every adult, not only the wealthy or elderly.

Though not all estate plans are the same, the most common documents are:

Will: Identify who will receive your assets (your beneficiaries), select guardians for your minor children, and name an executor to ensure your final wishes are carried out.

Revocable Trust: Transfer your assets to your designated beneficiaries when you die while avoiding the probate process. You can change or cancel a revocable trust during your lifetime, and you can put assets into or take assets out of the name of the trust at any time.

Advanced Health Care Directive: Select a person or persons (“agent”) to make health care and medical treatment decisions for you if you become incapacitated and cannot make decisions for yourself. You can also specify the type of medical treatment you want under specific circumstances (ex. artificial life support, organ donation, tube feeding).

Financial Power of Attorney: Select a person or persons (“agent”) to manage your financial or legal affairs. It not only gives the agent power over your finances, but can also include specific directions on how you would want your finances to be handled.

An estate is any property or assets you own at the time of your death, including:

• real property (ex. homes, vacant land)

• personal property (ex. cars, jewelry, art)

• bank accounts

• securities (ex. stocks, bonds)

• life insurance policies

• retirement plans

• business interests

A well-designed plan protects you and your family during your incapacity and after your death,and can achieve the following:

• Name someone to administer your estate after you die

• Identify who you wish to receive your assets after you die

• Appoint a guardian to care for any minor children

• Avoid the lengthy and costly probate process

• Identify someone to make financial or medical decisions for you in the event that an illness or injury results in your incapacity

• Direct any type of life-prolonging medical care

• Express funeral and other end-of-life wishes, and how related expenses should be paid

• Minimize any applicable taxes

Probate is the court-supervised process of authenticating a decedent’s will if there is one; collecting the decedent’s assets; notifying interested parties; paying the decedent’s bills, taxes, and any creditors; and then distributing what is left to the decedent’s heirs or beneficiaries.

A person, usually a family member of the decedent, files a petition with the probate court to be granted the legal authority to manage the administration of the decedent’s estate. Assuming they qualify and there is no contest, that person is appointed either as an executor or personal representative, depending on whether the decedent left a will.

Each state in the United States has slightly different probate rules and procedures, though the probate process in every state is time consuming and costly.

In California, probate typically takes at least one year, and could take several years depending on the circumstances.

Some factors that affect timing are whether family members agree, how many assets the decedent left, whether the will is contested, whether there are creditors, how difficult it is to find beneficiaries or heirs, and whether the executor or personal representative is attentive to his or her responsibilities.

In addition to court filing fees, the executor or personal representative typically hires a probate attorney to advise them throughout the process.

In California, probate attorneys charge a fee that is a percentage of the value of the decedent’s assets that go through probate.

Those percentages are set by state law. In California, those percentages currently are: 4% of the first $100,000 of the gross value of the probate estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, and so on.

No, not every estate goes through probate.

Probate may not be necessary if a decedent left a small estate. For example, in California, if the gross value of the decedent’s total estate (real and personal property) in California is $184,000 or less, the successor(s) of the decedent may not have to go to court. California permits a small estate affidavit as a way for a decedent’s successor(s) to claim assets instead of going through probate. If the decedent left real property, even if worth $184,500 or less, the estate may need to go through a simplified probate process to legally transfer title.

In addition to small estates, if the decedent created a valid trust and placed his or her assets into that trust, those assets will avoid probate. When a person (the “Settlor”) creates a trust, the assets are owned by the trustee, so upon the death of the Settlor, the trustee transfers the Settlor’s assets directly to the Settlor’s beneficiaries.

People typically name a close family member or friend to serve as their executor or trustee. You should select a person who you feel comfortable will respect your wishes and carefully manage your estate. If possible, you also should pick a person who lives close to you. It is more difficult to serve as executor or trustee if you have to travel to fulfill your responsibilities. If you do not have someone in your life that you trust to serve in this important role, you should consider naming a professional fiduciary. Professional fiduciaries offer estate management services among other services. California requires that professional fiduciaries are licensed and complete ongoing education requirements.

The time it takes to complete estate planning varies depending on the complexity of your situation and how quickly you make decisions. Generally the process can take anywhere from a few weeks to a few months.

Here is a rough timeline:

1. Initial Consultation (1-2 weeks): This involves meeting to discuss your goals, assets, and family situation.

2. Drafting Documents (1-2 weeks): I draft the documents according to your wishes.

3. Review and Revisions (1-2 weeks): You review the documents and I answer any questions and make any necessary revisions.

4. Finalizing and Signing (1-2 weeks): Once the documents are finalized, you sign them in the presence of witnesses and a notary.

I will provide you with a questionnaire to begin the process. The questionnaire will ask for basic personal information (name, date of birth, address) and family information; information about assets (real estate, bank accounts, retirement accounts, life insurance); beneficiary information; guardian appointment, and who you would like to serve as your successor trustee/executor and agent for finance and healthcare.

A pour-over will is a specific type of will used in conjunction with a living trust. It serves as a safety net to ensure that any assets not transferred into the trust during the grantor’s lifetime are “poured over” into the trust upon the grantor’s death.

Here are key groups of people who should consider an estate plan:

1. Parents with Minor Children. To designate guardians and ensure their children are cared for by chosen individuals.

2. Homeowners. To specify how real estate should be managed or transferred.

3. Individuals with Significant Assets. To minimize estate taxes and ensure assets are distributed according to their wishes.

4. Business Owners. To ensure succession plans and business continuity.

5. Individuals with Dependents. To provide for dependents who may have special needs or rely on financial support.

6. Married Couples. To protect their spouse and clearly define the distribution of shared and individual assets.

7. Single Individuals. To specify beneficiaries and make decision about their health care and finances in case of incapacity.

8. People with Specific Bequests. To ensure personal belongings or assets are given to specific individuals or charities.

9. Elderly Individuals. To plan for long-term care, medical decisions, and the distribution of their estate.

10. People with Health Issues. To select an agent to make health care and medical treatment decisions for you.

11. Anyone Wanting to Avoid Probate: To facilitate a smooth and private transfer of assets, avoiding the time-consuming, expensive and public probate process.

Updating an estate plan is an important aspect of ensuring that your wishes are accurately reflected and legally sound. Here are some key times when you should consider updating your estate plan:

1. Major Life Events: – Marriage or Divorce: Update your estate plan to reflect changes in marital status. – Birth or Adoption of a Child: Ensure your new child is included in your estate plan. – Death of a Beneficiary or Executor: Update to reflect the change. – Significant Changes in Financial Situation: If you receive a large inheritance, win the lottery, or experience a significant increase or decrease in assets. – Health Changes: A diagnosis of a serious illness or disability for yourself or a family member. – Buy or Sell Real Property. Update to reflect the change. – Move. Update to reflect the change.

2. Changes in Law: – Tax laws can change, potentially affecting your estate plan. Review your plan with an attorney periodically to ensure compliance with current laws.

3. Periodic Reviews: – Every 3-5 Years: Even if there are no major life events or legal changes, it’s wise to review your estate plan every few years to ensure it still meets your needs and goals.

4. Changes in Relationships: – If relationships with beneficiaries, trustees, or executors change significantly, consider updating your plan to reflect those changes.

5. Changes in Your Wishes: – If your priorities, goals, or preferences for asset distribution or guardianship of children change, update your plan accordingly.