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Articles Posted in Wills

A recent study in 2011 found that more than 50% of Americans do not have an estate plan. Furthermore, the study found that 92% of adults under 35 do not have one. A favorite saying among estate planning practitioners is, “Everyone has an estate plan. If you don’t create it yourself the State of California will create one for you.” This simply means that if you don’t create your own plan then the State of California will tell your family members where your assets will go upon your death. This is called intestate succession. To avoid this, everyone, young or old, should have a Last Will and Testament. A Durable Power of Attorney and Advance Health Care Directive are two additional necessary documents that every person should possess.

Last Will and Testament

This document outlines who you would like to inherit your assets at your death. You nominate an Executor to administer your estate and you can also nominate a guardian for any minor children you may have at the time of your passing. You can also nominate a pet guardian for any pets that you may leave behind as well. This is the most basic form of estate planning. Having a Last Will and Testament will allow you to have choose who will inherit your assets but it will necessitate a court proceeding called, “probate” in order for these assets to pass to your heirs.

Burt + Clerc previously wrote about the need for everyone to have some basic estate planning documents in place. One of these fundamental documents is a will. In California, the probate courts allow an individual to create holographic will. This is essentially a handwritten will. There are some risks involved with this however, and therefore we advise everyone to engage a knowledgeable estate planning attorney to draft your estate planning documents. Sometimes, time will not permit this or there are other reasons why someone may choose to draft his/her own will.

The basic will should include most, if not all of the following elements:
Your full name and place of residence The names of your immediate family members (i.e. children, spouse etc.)
List of specific gifts and their corresponding beneficiary (i.e. car, residence or jewelry)
Names of other beneficiaries Statement regarding the payment of expenses and debts owed by you Name of executor to manage your assets and affairs Name of at least 2 alternate executors in case your first choice is unable to act as executor Statement regarding posting a bond by the executor Name of guardian for minor children along with 2 alternate guardians Your signature Witnesses’ signature and attestation clause

Although the process of creating a will is relatively painless and actually pretty easy, about 50% of Americans die without one. When someone dies without a will it is called intestate and the laws of California determine who will receive your assets and property. This is usually not the distribution that most people would have chosen.
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Many people neglect planning their estate, creating a will or trust and thinking about the inevitable. Much of this is due to the fact that people are not especially pleased to discuss their own death and the misconception that estate planning is only for the wealthy. However, everyone needs an estate plan especially parents with minor children. Irrespective of how large or small your estate is, if you have a child under the age of 18 you need an estate plan.

At a bare minimum, we at Burt + Clerc, advise new parents to have a Will, a Durable Power of Attorney and an Advance Health Care Directive.

Will
A will is a written document that outlines your wishes regarding how you want your property distributed when you die. Importantly for parents, it can also outline who you wish to nominate as guardian of your minor children. Knowing who will care for and raise your children is a huge comfort to many parents. Nominating a guardian also helps make the transition for everyone, including children and family relatives, must easier.

Durable Power of Attorney (DPOA)

A DPOA allows you to nominate an agent to act on your behalf regarding finances. This document is important if you should become incapacitated or unable to make these decisions yourself. For parents this is especially important because if a parent becomes incapacitated the agent will be able to pay for the child’s health, education and other needs.

Advance Health Care Directive
An Advance Health Care Directive, also known as a living will, outlines your desires and wishes regarding health care decisions and end-of-life care. This document can sometimes be the hardest to complete but necessary and important. Ambiguity regarding your heath wishes can cause much confusion and consternation among family members. This is magnified when a parent has minor children. Every parent should think about their inevitable passing and what their wishes are regarding end-of-life care. You should share this document with your spouse and/or family and your health care provider.
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