In case you didn’t know, if you don’t have a plan, your state has one for you, but you probably won’t like it.
During these odd times, estate planning becomes even more relevant.
At disability: If your name is on the title of your assets and you can’t conduct business due to mental or physical incapacity, only a court appointee can sign for you. The court, not your family, will control how your assets are used to care for you through a conservatorship or guardianship (depending on the term used in your state). It can become expensive and time consuming, it is open to the public, and it can be difficult to end even if you recover.
At your death: If you die without an intentional estate plan, your assets will be distributed according to the probate laws in your state. In many states, if you are married and have children, your spouse and children will each receive a share. That means your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance. If both parents die (i.e., in a car accident), the court will appoint a guardian without knowing whom you would have chosen.
If you'd like a short-term solution to what you should have done long ago, there are some statutory forms that could be used to provide at least a minimal level of protection.
The least you can do is execute the following documents on your own:
1. Statutory Will http://www.calbar.ca.gov/Portals/0/documents/publications/2014_CAStatutoryWillForm_ab_1986_bill_20100715.pdf
2. Power of Attorney
3. Advance Health Care Directive
These documents are not a substitute for a comprehensive and personalized estate plan or attorney's advice; however, they are a good starting point, which you can accomplish on your own with very minimal time effort.
Given the choice—and you do have the choice—wouldn’t you prefer these matters be handled privately by your family, not by the courts? Wouldn’t you prefer to keep control of who receives what and when? And, if you have young children, wouldn’t you prefer to have a say in who will raise them if you can’t?
Don’t hesitate to reach out to Magomedov Law Group for your peace of mind today.
Do you have a child/niece/nephew/sibling heading to college this summer? For most recent high school graduates and their parents, estate planning is probably the last thing on their mind. With a child being barely an adult with practically no assets, why would he/she need estate planning?
Estate planning does not always focus on property and assets distribution from parents to their kids. A substantial part of estate planning has to do with creating documents that would protect an individual in case of their incapacity.
Parents are used to making decisions for their kids when it comes to healthcare, financial, and other aspects of their children’s lives. However, many parents fail to realize that upon their child reaching adulthood, which is the age of 18, a parent’s ability to control their child’s life and make decisions for them, simply disappears. Parents can no longer speak with their children’s doctors, landlord, bankers, or even access their medical records. Below is a list of the essential documents that each young adult should have before leaving home.
1. HIPAA release form and an Advance Health Care Directive
When a child is away at school and falls ill or otherwise needs medical attention, most parents assume that they will be contacted and will have the rights and responsibilities to direct care. In fact, parents may be surprised that an 18-year-old is protected under federal HIPAA law and medical professionals will deny health care information to parents.
2. Durable Power of Attorney
A Durable Power of Attorney is a powerful document which enables you to designate an agent to act for when it comes to financial, personal and private matters in the event that you are unable to do so yourself. This document will allow a parent to talk to their child’s landlord, bank, or even school. It would allow a parent to pay their children's bills, rent, and other expenses.
These documents could be prepared specifically for your child by an estate planning attorney. In California, you also have the option of using statutory forms for each of these documents:
Advance Health Care Directive:
Statutory Power of Attorney: https://www.smclawlibrary.org/forms/PowerOfAttorney.pdf
HIPAA form: https://www.dhcs.ca.gov/formsandpubs/laws/priv/Documents/2017%20Privacy%20Forms/FINALAccessibledhcsform6247.pdf
Since it may be important for you to be able to make crucial financial and/or health decisions for your child, it’s imperative to establish your legal ability to do so ahead of time. Waiting until something happens where your child may be incapacitated, even temporarily, is too late. He or she will be unable to consent to access their health records or authorize a parent to make decisions on their behalf. Therefore, it is imperative for your college student to have a properly executed Advance Health Care Directive, HIPAA form and a Durable Power of Attorney before they leave home and head to college.
With the summer break being in full effect, many individuals and families look forward to taking some time off and enjoying a relaxing week or two away. And, of course, vacation means planning: making sure everyone has the right clothes, sunscreen, accommodation, and transportation are usually at the top of the infamous “to do” list. What is perhaps more important and is often left off the “to do” list, is estate planning, ensuring your peace of mind while you are away.
Get that Estate Plan in Place
If you do not have an Estate Plan, now is the time to get one. If money is a consideration, start off with some basic but essential documents, such as a simple will, advance healthcare directive, durable power of attorney. If you have children, put in place a nomination of guardianship. The latter will ensure peace of mind that in the event that the unexpected occurs while you are on vacation, your children will be provided for. If you already have an estate plan, review it to ensure there haven’t been any changes in your family circumstances since your last review.
Nomination of Guardian
If you have minor children who may or may not be accompanying you on vacation, you as a parent can ensure that their welfare is catered for in the event that you are unable to care for them yourself. Should an event occur while on vacation that renders you or the other parent incapable of caring for your child, a nomination of guardianship provides specific instructions to the court and identifies who should have custody of your child.
Review Title Beneficiaries
If you own a home, review title and ensure that the property is titled in the way that you so wish. If you have a trust, ensure it is titled into the name of your trust. Review your retirement plan – are the listed beneficiaries still your chosen beneficiaries?
Prior to leaving on vacation, you should ensure that you have documents in place that enable a trusted person to act for you in the event that you are unable to act for yourself. Should you have an accident on vacation, or another event that renders you unavailable to conduct your daily affairs, be it from a financial standpoint or personal standpoint, you will need someone to act in your place to ensure that your affairs are in order. A durable power of attorney is a powerful document that enables you to designate a trusted individual to act for you in the event of the latter scenarios. Should an event occur rendering you incapable of speaking for yourself from a health care standpoint, you would want a trusted individual to speak for you.
Another document which speaks for you when you can’t speak for yourself is an “advance healthcare directive” which enables you to document your wishes for medical treatment in multiple scenarios and enables you to designate an agent to speak for you in the event that you are unable to speak for yourself.
The latter documents will ensure peace of mind while you travel, that you have acted in your best interest prior to the occurrence of the unexpected.
Prior to going on vacation, it is a good idea to review your insurance coverage. In particular, life insurance coverage is of huge importance in planning for the unexpected if you do not have a liquid estate. If you are concerned that your family would not be financially able to survive in the event of your untimely death or incapacitation, provide yourself with peace of mind by putting in place life insurance. A decent life insurance plan will ensure that should you not be able to provide for your family, that your family will have access to cash flow that will ensure their financial stability. By purchasing life insurance, you ensure that the devastating impact of your untimely death will not be compounded by devastating financial hardship.
Business Related Concerns
Make sure your business affairs are in order and you have a plan in place to take care of current clients/patients. The latter can be accomplished through a thorough business succession plan, or if you have business partners, a buy/sell agreement. Speak with a colleague who can cover for you if you are not able to serve your patients/clients either temporarily or permanently. At minimum, have a power of attorney in place to designate someone to act for you, in the event you become incapacitated.
Taking a trip should be an enjoyable experience. Establish an estate plan before you leave and experience the peace of mind that comes with knowing that even if your trip does not go as planned, you have a plan in place that will protect you and your family.