Your Estate Planning Attorney Explains the Dos and Don’ts

This is an article from the Northern California Center for Estate Planning & Elder Law  (https://www.norcalplanners.com/) in Sacramento, California, that we thought others may find helpful.

As with many legal matters, an estate planning attorney has his or her share of horror stories from years of working with clients to create an estate plan.  Whether its issues relating to property ownership or family disputes over a loved one’s estate, it is fairly common for problems to arise when passing on an estate.

Unfortunately, most clients assume that their children or beneficiaries will be willing and civilized enough to work things out on their own.  Consequently, many people believe they don’t need to have a formal estate plan.  Or, if they do have a plan, they fail to consider all of the issues that may potentially arise.  The truth is, even the most basic estate plan can be quite helpful in avoiding family conflict.

Do take the time to create a solid estate plan

Regardless of how much or how little property you may have, you should consider hiring an estate planning attorney to draft an estate plan for you.  That way, you can ensure that your family and loved ones have a clear road map for how you want your estate handled.  Always remember that the value of an asset is not always seen in terms of money.  Some property will have more of a sentimental value.  Discuss the value of certain assets with your family ahead of time to avoid problems in the future, if you leave that property to the “wrong” person.

Don’t rely on your children to divide property the right way

Never rely entirely on your expectation that your children will be able to decide who gets what.  In many cases, money and property can divide a family quicker than anything else.  You should not assume that your family will simply carry out your informally expressed wishes.  Do your best to discuss potential areas of conflict with them while you are still able to do so and follow it up with comprehensive planning documents.

Do discuss the benefits of a trust with your estate planning attorney

You should discuss with your estate planning attorney whether you need for a trust or a will. If you do need a trust, then you need to select an appropriate trustee to manage your trust, someone who will make an appropriate fiduciary.  That means some who can be trusted.  The same considerations need to go into who will be the executor of your Will.

Don’t try to establish a trust on your own

Trusts are complicated estate planning instruments which, if not handled properly, may not be valid.  The best thing to do is seek the assistance of an experienced and qualified estate planning attorney who will understand the tax consequences and benefits of the various types of trusts.  Also, do not forget to name a successor trustee along with your primary trustee.  There are various reasons your chosen trustee may not be able to serve in that capacity in the future.

Be sure to include a durable power of attorney as part of your estate plan

Understand that a durable power of attorney can benefit anyone, regardless of your socioeconomic status.  The possibility of incapacity is always there.  Just in case, you need to choose a trusted friend, associate, or family member to have a power of attorney over your affairs in case you become incapacitated.

This is an extremely influential appointment, as the person you choose will have the ability to make many of the financial decisions that you would normally make, so trust is of the utmost importance.  A health care power of attorney, commonly known as an advance health care directive, just like a financial power of attorney, gives your agent the authority to make health care decisions on your behalf.

Don’t assume your spouse can take over everything automatically

Do not assume that your spouse will simply take over and handle things for you if you become incapacitated.  It is possible that your spouse won’t be available.  For instance, if you are both injured in a car accident and both are incapacitated then you will need someone to handle your affairs.  If at all possible, your financial power of attorney and your healthcare power of attorney should not be the same person.  That way, no one person will have nearly complete control over your future.

Why you need an Estate Planning Attorney

When it comes to planning for your future and your family’s future, the advice of an experienced and qualified estate planning attorney can be irreplaceable.  Your Estate planning attorney can provide you with the guidance you need to make all of the important choices that are necessary.  Your attorney can describe all of your options and help you decide what tools are best for accomplishing your goals.