Do I Need An Estate Plan?

Do I Need an Estate Plan?

Estate planning is simply just that-planning!  Estate planning can range from very simple planning to very complex planning, and even something in between.  Most people can describe a will.  However, beyond a will, most people do not know much about the other estate planning documents such as an advance health care directive, durable power of attorney or a revocable living trust.

A good estate planning attorney will plan for two major areas in life:  incapacity and death.  Whether you need an estate plan or not, please give some thought and answer the questions below.

Do You Own Real Estate?

Generally speaking, if you own a home in your name alone, then upon your death, your home has to be legally transferred to another person.  If you do not have a comprehensive estate plan in place, then upon your death, your estate will likely have to go through probate. If you have a valid will when you, i.e., you die “testate”, then the assets will be distributed to your beneficiary according to the terms of your will.  If you do not have a will when you die, i.e., you die “intestate” then the State of California will dictate who will receive your property, not you!   In other words, the State of California has a default estate plan for every adult who dies without an estate plan in place.  So do you want to create your own estate plan or do you want the State of California to create your “estate plan” for you? See “Do I Need Estate Planning” pamphlet by the California State Bar.

Do You Have a Family History of Disease or Dementia?

If you have a family history of Alzheimer’s, Parkinson’s, cancer or some form of dementia, then logic should tell you that you should have an estate plan in place in the event you are ever rendered incapacitated.  Furthermore, there are numerous other ways, both young and old alike, become incapacitated everyday in California.  For example, many Californians are rendered incapacitated by car accidents, slip and falls, heart attacks, and strokes.  Having an estate plan in place in case something happens will give you peace of mind knowing that your plan protects you, your family and your assets when you are no longer in a position to do it yourself.

Do You Have Minor Children?

If you have a child or children who are younger than 18 years old, then proper planning must be put in writing.  If you were rendered incapacitated or deceased and you child or children are minors, then a court must appoint a guardian for your minor children.  If you have a valid written minor guardian nomination, then the judge will view this legal document evidencing your intent to whom you designate to be the guardian of your minor children. This legal document will allow the judge to make the appropriate guardian nomination of your child or children if your were rendered incapacitated or deceased, or if there ever was a dispute between family and friends as to who should be the guardian of your children.

Do You Want to Keep Your Medical and Financial Information Private?

If you are rendered incapacitated without an estate plan in place, or died with or without a will, then your medical and family information will likely be disclosed to the public in probate court because probate court is open to the public.  On the other hand, if you were rendered incapacitated or deceased with a comprehensive estate plan in place such as a revocable living trust, advance health care directive and power of attorney, then these documents will likely circumvent probate and keep your personal and family information private.

Do You Want to Potentially Avoid Substantial Attorneys Fees?

Dying with or without a will can be costly.  Probate fees can be substantial given the size and complexity of the probate estate.   In probate, attorneys and executors are often paid substantial amounts.  See probate fees.   Also, the court will charge the estate for filing fees, probate referee fee, and court investigator fee, etc.   A comprehensive estate plan can avoid a costly probate proceeding and substantial probate fees.

Do You Need An Estate Plan Now?

Overall, most people should have an estate plan in place to address their potential incapacity and certain death.  For more information about estate planning or any other questions regarding estate planning, please contact the Law Office of Matthew W. Harris, a Marin County Estate Planning Attorney, today  at his San Rafael office for a free estate planning consultation at (415) 521-5610.

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