Estate planning guide: when, how and why to update your existing plan

One of the most common estate planning questions I get is when and why you would need to update your estate plan. Here are your guidelines:

  1. Has the value of your estate increased substantially since your last update?  Do you have more than $5 million if you’re single, or $10 million if you’re married?  Is this a change from before?  If so, then you may want to consider a review of your estate plan.
  2. Did you complete your powers of attorney before 2003?  In California the forms changed at that time, so now would be a good time to take another look.
  3. Are your beneficiaries on your retirement and life insurance accounts updated?
  4. Does your estate plan reflect your current family and desires for distribution to them?  Or has there been a birth, death, marriage or divorce since your last estate check up?  If so, you may need a review.
  5. Are you protected for a time (the time) when you are unable to think or care for yourself? Do you have your powers of attorney? Long-term care?  Advances in medical care mean we will live longer, but at the same time we will more likely experience a diminishing of capacity before we pass on.  Without these basic planning tools, we leave our family with these burdens.  Are you approaching 50?  If you don’t have long-term care yet, now is the time to get it.  You can’t wait until you need it or you won’t qualify.
  6. Have you chosen a guardian for your minor children?  If you don’t, then your children could become the subject of a custody battle if something happens to you, or they could be place in foster care while the decision is being made.  Don’t take this risk!

If it has been a while since you created your estate plan, or you don’t have one at all, now is the time to put the tools in place to protect your family and your assets.  Schedule a FREE appointment online, or call us at 925.307.6543.

Make sure your California divorce attorney knows estate planning. And your California estate planning attorney? Make sure they know family law, too.

There is a great deal of overlap between estate planning and family law.  So much so that, if you’re seeking a lawyer in either area, you should make sure you have one with experience in the other area of law.

Take your divorce lawyer.  Why would knowledge of estate planning be important?  Well, for starters, your divorce is going to end at some point.  And because divorces often take much longer than we’d like, we are often exhausted after they’re done, and have no desire to do any other kind of planning or work on the whole divorce issue.  But once the divorce is done, this is when the really critical aspects of your financial life and future come into play.  You need to change your beneficiaries on your retirements and life insurance.  You need to change and update your will and estate plan, your powers of attorney, and the guardians for your children.  A divorce lawyer without estate planning experience is not necessarily going to make sure you’re properly advised on these issues.

Conversely, let’s look at your estate planning attorney.  First, in blended families (where one or both spouses have children from a prior relationship), there are specific estate planning issues that overlap with family law.  In addition, it’s important to know whether either of the spouses has separate property.  Separate property is property that either spouse owned prior to the marriage.  If either has separate property, then putting the property into the trust without a separate property agreement transforms the property into community property….and this could make the owner spouse quite upset should the couple eventually decide to divorce.

These are just a few of the small issues that overlap, and there are many more.  So many that it would be detrimental to you and your family – not to mention your financial future – to consult with an attorney who lacks knowledge and experience in one of these areas.

Need more information?  Getting a divorce and overwhelmed with all the information you need to know?  Click here for my FREE “Divorce 101” 7-Day e-Course plus FREE 7-page Report, “Things they don’t tell you about divorce in California (and everywhere else!)”

Need even more help? Schedule an online appointment here or click here for California Divorce Made Easy!

Who needs an estate plan? Top 7 reasons why you need one even if you think you don’t. Part II:

Last time, we talked a little bit about the top reasons why you may need an estate plan, even if you think you don’t.  Here are the last three reasons.

  1. Your children’s guardian.  Have children?  Have you named their guardian?  Is this document posted prominently in your house in case it’s needed?  If you don’t decide on your guardian, the court will.  The court doesn’t know you, your children, your family, or who you think would be most appropriate (or, conversely, who would NOT be appropriate).  You may not have decided on someone, but you’ve probably eliminated some candidates.  When you name no one, no one knows who you have eliminated, as the job is up for grabs to anyone.  Name your preferences or your very last choice could very well raise your children.
  2. Your child’s guardian, part two.  What happens if you’re in an accident and you and your spouse go to the hospital?  Will the police leave your children with the underage babysitter?  No, of course not. If you have not chosen a guardian, and posted that prominently (and told the babysitter), then the police are going to take your children to the police station.  They may very well put your children into foster care while you recover.  While the chance this would happen may be slim, why take the chance?
  3. Other documents necessary.  If you don’t have an estate plan, you’re less likely to have powers of attorney, a living will/advance directive, and other necessary estate planning documents.  These documents generally help you when you become incapacitated and cannot make decisions on your own behalf.  Often a spouse is your first choice, but what happens if your spouse is also incapacitated?  You need to prepare these documents to protect yourself and your wishes from being honored if you can’t speak for yourself.
Convinced?

Who needs an estate plan? Top seven reasons why you need one even if you think you don’t. Part I:

When I am talking to friends, colleagues and potential clients, they often tell me that they don’t need an estate plan because they don’t have enough money to reach the estate tax exemption ($5.25 million).  What is distressing to me is that individuals with estates worth one million dollars or less (this is the gross estate not taking into account any debt) have so much more to lose when they don’t have an estate plan in place.  Here are some reasons why:

  1. Probate fees.  If you have $150,000 in property in California – so anyone from Oakland to Livermore to San Jose to Walnut Creek with a house meets this requirement – will be headed to probate.  Probate fees cost 8-10% of your gross estate.  So if your total estate, not considering debt, comes to about $800,000, your estate could be paying up to $80,000 in probate fees.  Wouldn’t you rather that money go to your family?
  2. Probate time.  The probate process in California can take 6 years or more to complete.  During this time, your family has to deal with lawyers, court, judges, appraisers, and other strangers in their lives.  Plus, the property cannot be transferred during this time, so your family waits all these years to get access to the estate you left them.  With an estate plan, there is no delay at all.
  3. Ease of transfer.  The probate process is difficult, frustrating, time-consuming and very expensive.  Without an estate plan, you force your family to go through it at a time when they should be taking care of themselves and each other in the wake of the tremendous loss.  Generally we pick our closest family member to administer our estate.  Why wouldn’t we make that administration as easy as possible for them?
  4. Emotional difficulty of probate.  In addition to the fees, the time and the difficulty, the length of probate doesn’t allow our family members to move on after a death.  We all have our own processes for dealing with grief and death, and some take longer than others.  But the seemingly-endless probate process means that your family can’t get past the loss until the court says they can.  This allows for more time to get angry, to fight with other family members, and be held back in their own personal growth.  In life we support the growth of our families; why would we want to hold them back in death?
Come back tomorrow for the final three critical reasons you need an estate plan, even if you think you don’t!

Talking to your parents about estate planning: how to do it and when to do it

Many of my clients ask me how they can talk to their parents about estate planning. Either they are doing their estate plan and want to make sure their parents are properly protected, or they are learning about the importance of estate planning, and just want to make sure their parents know what they need to do. I’ve talked about this before in a similar article, but I wanted to provide a new perspective to go along with the older article.

First, you are coming from a place of concern rather than a place of greed (“Hey Mom, what am I going to get?!”). You know that they don’t want to put themselves into a situation where they are not taken care of in the way that they want to (for example, if they don’t have proper powers of attorney in place). You know that they want to do all they can to help you and your siblings and/or their grandchildren. You know that they are probably concerned about leaving a legacy to their family and to the world. While we don’t think about this much when we are younger, nearly all older adults worry about leaving a legacy. Part of my estate plans with all of my clients, from San Jose to Novato, includes a place to record not just where the finances go, but how the important personal items are distributed, passing down important genealogical, medical, military and personal histories. You know your parents want to do this, so you want to make sure they know how.

Second, parents will always be parents to their children, so you can bet that they want to continue to take care of you as much as possible, even after they are gone. The probate process, which is what will happen if an estate (in California is worth $100,000 – not taking debt into account) passes without a living trust, is a burden on you and your siblings. It’s time-consuming, expensive, and adds an incredible additional burden to you at their death, which will be hard enough as it is. By encouraging your parents to create an estate plan, you are helping them to continue to take care of you after they are gone, which is what all parents want.

A great time to discuss estate planning is (1) now, since you’ve read this article (send them the link! Isn’t your mom always sending you newspaper clippings? I know mine is…), or (2) when you do your own estate plan. Talking about your experience can be a great conversation starter.

It doesn’t have to be a tough conversation, but it is a necessary one.

So you have a living trust! Congratulations…now here’s some tips on what to do with it

Where to keep it, when to update it, and what to do with it:

o Keep your estate plan in your house, accessible to your family. If it’s in a safe deposit box when something happens to you, your family may not be able to get to it.
o Tell your family, and particularly your successor trustee, where your estate planning documents are located.
o Keep a copy (it does not have to be executed; I give my clients a blank copy) in a safe place, such as a safe deposit box in case your original is destroyed or lost.
o Review your estate plan each time there is a major life event in your family, such as a birth, death, marriage, or divorce. Also review it if you’ve bought or disposed of real property.
o Barring major life events, review your estate plan every two-to-three years to make sure it still reflects what you want. You can spend 15 minutes skimming through the summary sections to ensure you don’t want to change anything.
o Give your power of attorney for health care decisions and living will to your agent (the one who will be making decisions for you), and if it’s your spouse, also give one to the successor agent.
o Give your power of attorney for health care decisions and living will to your doctor(s) for your file, to the hospital if you have one you would go to in an emergency, and to your pharmacist.
o Give your power of attorney for your property to your agent or successor agent as well as to the institutions they will likely be dealing with, such as your bank, your financial advisor, or other account managers.
o Give your named guardian and conservator the nomination documents and make sure all caregivers know about them and how to find the documents in an emergency.
o TALK to your family about your wishes, your plans, and who you have designated as agent, conservator, and guardian.

Estate planning when you don’t have children or other heirs

Most of us first think about estate planning once we have a child. We know that having a child means we have to create something to secure our children’s future should something happen to us. But what about when there are no children? I have several clients who fit this profile in various areas in the Bay Area, and I have done estate plans – created living trusts – for single and married, childless, individuals and couples in Oakland, San Leandro, Lafayette, Fremont, and Hayward, among others.

There are a variety of different options for you if you don’t have children or other natural heirs. You can leave your estate to your siblings, parents, or other relatives, such as cousins. One client of mine set up an educational trust for her younger family members to help them to pay for college. You can use the opportunity to support a charity, as one client of mine is supporting a local animal rescue charity in her estate plan. In addition to animal charities, there are a wide variety of disease and disorder charities that are always seeking donations. Schools also will gladly accept donations in the form of bequests, so you can support a school that helped you to get where you are. One of my estate planning clients is leaving a substantial grant to UC Berkeley in their trust.

If you don’t create an estate plan and don’t have natural heirs, then your estate will go to the state. While you may not think this is too terrible, perhaps since you didn’t know exactly who to leave your money and assets to, I urge you to consider this:

1. What do you want your legacy to be? Leaving it to no one – the state – means there is no legacy at all.
2. There are so many deserving, hard-working, underfunded charities out there. Isn’t there at least one you would like to support?
3. You worked your entire life to create your estate and your legacy. Why not leave it to a cause important to you?