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3 Essential Estate Planning Items


To ensure your wishes are carried out after death there are 3 essential estate planning items that everyone needs.

1)  Will or a Trust:

The simplest estate planning document is a Will. You can create your own Will by simply writing out the Will in your own handwriting, signing and dating it. This type of Will is called a holographic Will. California Probate Code 6110 sets forth the basic requirements of a valid Will. If you type your Will then, it must have the signatures of two disinterested witnesses. If the gross value of the estate exceeds $150,000, then a probate will be required upon death.

The other commonly used estate planning document is a Living Trust. This allows one to put all of their assets into the trust, administer the trust for their benefit during the lifetime and transferring the assets to their beneficiaries upon death -- no probate is needed. Another benefit of a trust is that if one becomes incapacitated, the trust would name a conservator to care for one's needs. This conservator could be a spouse, a child or whomever you choose but it avoids having the court appoint a conservator.  California Probate Code 15400 provides that unless otherwise stated, a living trust is revocable which means that once set up, one can change their mind at any time and terminate or alter the trust. A living trust is a popular estate planning tool that is a convenient and efficient means to distribute one's assets at death.

2)  Durable Power of Attorney:

A "power of attorney" is a legal document that gives another person the right and authority to make decisions and act on your behalf. However, the power of attorney is ineffective if you become incapacitated -- unless you have a Durable Power of Attorney. If one were to become incapacitated, hospitalized, or disabled and unable to handle one's own affairs, then the durable power of attorney will remain in effect and the one whom you named as your attorney-in-fact can carry out your affairs for you. A regular power of attorney will terminate at your incapacity or at a fixed date. A durable power of attorney will endure your incapacity and allow your loved ones to take care of you. The laws governing power of attorney are set forth in California Probate Code 4000 to 4545.

3)  Updated Beneficiary Designation Forms: In most cases, the designated beneficiaries named in 401(k) plan, IRA or life insurance will override one's will, so it is imperative to take the time to update these forms when one has major changes in one's life such as a birth, death, marriage or divorce. It is important to check and update these forms on a regular basis

Information derived in part from article written by Paul Horn, Attorney at Law.

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