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Sacramento Estate Planning Blog

How a living will can help your family

The last thing on anyone's mind as they go through their day to day activities is their own death. But as we know from the wise words of one of our founding fathers Benjamin Franklin, there are but two certainties in life, death and taxes, and it is important to recognize and address both.

An accident with injuries or an illness can strike any person at any time without any warning. Depending upon the severity of the injuries or illness, victims might find themselves incapacitated or in a coma and unable to speak or communicate with others. For this reason, it is not uncommon for Americans, including those from the Sacramento, California, area, to create a living will.

Even someone with a trust probably needs a will

Many people in the Sacramento area and other parts of California may already have a trust set up for the maintenance and distribution of their property both during their lives and following their deaths. These trusts, called inter vivos trusts, are popular among Californians because of the possibility of "avoiding probate" and because, for some, they carry important tax advantages.

However, it is important for people to remember that, even if they have created a trust through a lawyer or by some other means, they will likely need well-drafted thorough wills. These wills, called pour-over wills, serve the important purpose of making sure that, assuming is a person's intention, all property of the person goes in to his or her trust after death, leaving nothing subject to California's intestate laws.

Understand the importance of an executor

The last thing any of us want to think about is our death. But as we know, death is inevitable, and we never truly know when our time is up. Even those who are healthy and take all the necessary precautions to assure a healthy lifestyle could be stricken with a sudden accident, injury or illness without warning. With this in mind, it is very important to be proactive when making decisions regarding one's estate planning.

Estate planning includes not only the distribution of your assets and property upon your death, but also decisions regarding your living will. A living will is not an actual will, but is a document that informs medical professionals as well as your family how to handle serious medical decisions that must be made if a person becomes incapable of communicating with others.

What is a holographic will?

Although it may sound like an item out of a science fiction book or movie, holographic wills are a real thing, and they are valid in some states throughout the U.S., including the state of California. Ironically, holographic wills are the opposite of anything involving advanced technology; holographic wills, simply put, are wills that are handwritten and hand-signed and not formal typed documents. That does not mean, however, that they are any less legal in about half the states in America.

There are varying degrees at which such wills are legal. In California, all sections of the will must be written by hand and must be signed by the writer of the will. Failing to meet all the necessary requirements might invalidate the will.

Estate planning is important even if you do not have children

While most Americans are graced with families and friends, there are still some out there who, for whatever reason, do not have a large number of people at their side toward the end of their life. Maybe they had a small family to begin with and they just outlived them, maybe they had a falling out with their family, maybe they were just less social.

Whatever the reason, just because you do not have a list of people you want to leave your assets to does not mean that you should avoid estate planning all together. Creating a will means that the government will not decide what to do with your money at the time of your passing. If you pass away without a will, it is called dying intestate; this means that the state courts will decide what happens to your assets. You may want to share some of your earnings with a local support group, or perhaps a religious establishment, or any charitable endeavor you find honorable that serves the greater good. You could even create a foundation and scholarship to award money to a well-deserved student. The possibilities are endless, but the fruit of your lifetime of labors will go to places you want them to go only if you have a will in order. Despite the numerous benefits of having a will, it is still believed that as many as 64 percent of Americans do not have a will, according to a 2016 Harris poll.

Important points about a revocable trust

Having a well-organized estate plan is one of the most important decisions that a Sacramento resident can make for the good of his or her family. While this is generally understood, many people are lacking the in-depth information to make the best decisions to suit their specific situation. A trust is an example of this. There are various kinds of trusts including a revocable trust and an irrevocable trust among others. Knowing how a revocable trust can be beneficial is a wise step before using it.

A trust that holds any property that is to be contingent on its provisions being met is a revocable trust. With a revocable trust, it can be changed as to its definitions even after it was created. The trust can be eliminated entirely with the assets returning to the individual. The person who takes out a revocable trust will often also be the trustee for its duration.

Important estate planning considerations for same-sex couples

California has long been one of the more progressive states when it comes to marriage equality. The increased acceptance of same-sex unions has allowed many couples to prepare for the future with their estate plan. However, that does not alter the reality that there can be complications with a same-sex relationship. There are certain factors that should be remembered with such complicated estate planning.

Although same-sex marriage was legalized in the U.S., some couples might have gotten caught up in the past when certain states allowed it and others did not. The belief that the marriage might not have been legitimate prevented some from taking the proper legal steps if they parted ways, but were technically married. Failure to acknowledge this could be an issue if one of the partners or spouses dies and the assets are up for dispute.

What are the 2 kinds of probate guardianship in California?

Estate planning in California will have multiple issues that must be accounted for, but one that is a frequent cause for concern is guardianship. There are two kinds of probate guardianship in California and these must be understood by those who are concerned about a loved one after death. When drafting estate planning documents, it is essential to know whether there should be a guardianship and which kind is applicable if one is needed.

The first type of guardianship is the guardianship of the person. This means that the guardian will have the identical responsibilities to take care of the child as the parent has. The guardian will have full legal and physical custody and can decide about the child's care. It can be anyone the testator chooses. Included in the responsibilities will be shelter, food, clothing, safety, emotional growth, physical growth, medical care, dental care, education and more. The child will also need to be supervised by the guardian.

Drafting estate planning documents when married a second time

In California, it is not uncommon for people to marry more than once. Certain matters must be handled when in this situation, and one that many people forget is how to deal with drafting estate planning documents to account for the new marriage. This is especially worrisome if it is a blended family with children from both spouses' previous relationships becoming part of the equation. There are certain issues that might be forgotten, but are not any less important.

For people who own property or have financial portfolios, the assets and income might become mixed together. Having a joint account can be beneficial to pay debts, but some people keep individual accounts as well. This is a wise decision if there are entanglements with a former spouse. Creditors generally do not care about divorce settlements if both names are on the account, so this must be considered.

Late actor's assets in dispute despite cogent estate planning

For those that have significant wealth and blended families, drafting estate planning documents is especially important if the person wants to avoid probate and disagreements among their family members after death. These circumstances apply to many people in California, whether they are in the entertainment industry, in business or in some other endeavor that has led to them having substantial assets. It is an unfortunate reality that even if the person was diligent in estate planning, there can still be legal battles over the estate. Such is the case with the late actor and entertainer Alan Thicke.

Thicke's grown sons, Robin and Brennan, have filed a petition over the late actor's estate. The case was filed in Los Angeles. The sons are named as Thicke's co-trustees for his living trust. They assert that they are doing this to protect his legacy and his estate from their allegations of greed against his third wife.

My Sacramento law practice, Michael A. Sawamura, Attorney at Law, focuses on wills, trusts and estate planning law in addition to business law and corporate defense services. My clients include professionals, government employees, small businesses, blue-collar workers and national corporations.

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