Estate planning is so much more than just leaving the good silver to your children and naming a responsible person to carry out your wishes. Each plan is different, like each family is different. If you meet with an attorney who uses the same trust form for each client: run.
Many people see estate planning as a necessary evil. A chore, akin to doing taxes. Usually, a triggering event causes someone to seek out estate planning. The loss of a friend or family member may lead to contemplation about death or incapacity.
But others understand the importance of planning after major life events, such as purchasing a home or starting a family.
Whatever the reason may be, many people do not expect it to be a pleasant process and even dread that they will have to admit that their family is not perfect. I wish I could tell each of those anxious individuals that from my experience across the table, I usually observe two things: the client feels empowered after exercising control over their own assets and important decisions; and the client feels assured because the plan they’ve put in place will take care of loved ones when they are gone.
During the estate planning process, you should be prepared to talk about your assets and how you would want those assets to be managed and distributed if you were to perish tomorrow, in 20 years, or even in 40 years. You will also need to decide who should be put in place to make financial and personal decisions for you if you were unable to do it yourself due to injury, age, illness, or other factors.
For many people, thinking about the future can be difficult. Personally, I think it is more difficult knowing what happens without a plan in place. The default provisions under California law governing decedent’s estates/probates and conservatorships rarely reflect a person’s true wishes about how things should be handled.
Decedent’s Estates/Probates
In general, without an estate plan in place, a person’s next of kin will receive all assets subject to probate (this typically excludes assets held in joint tenancy or that have a beneficiary designation). We’ve settled too many estates where the decedent’s assets landed in the hands of distant family members who didn’t even know (or didn’t like) the decedent. We’ve also had a few cases where a surviving spouse’s assets did not go to heirs and instead, were clawed back to the heirs of the surviving spouse’s predeceased husband or wife as required in certain instances under the Probate Code.
Conservatorships
I strongly believe that if the general public had direct exposure to the inner workings of California conservatorships, every single person would flock to their nearest estate planner. There is a reason the probate courts in California see conservatorships as a last resort option, only to be established if absolutely necessary.
Yet, probate conservatorships are increasingly common due to lack of proper estate and incapacity planning. Although most of our conservatorship cases involve older conservatees who have lost capacity due to mental deterioration, we have handled several cases where conservatorships were established for much younger individuals, who suffered unexpected health related incidents. Without a proper estate plan, a conservatorship may be the only option for someone who has lost the ability to make their own personal and financial decisions.
Instead of dreading the difficult aspects, estate planning should be viewed as an opportunity: to memorialize your wishes, to plan for the future, to care for children and family members, to benefit your favorite charitable organizations, to keep your affairs private, to minimize taxes, and to ensure your legacy carries on.
Courtney Patton is partner at Jakle, Alexander & Patton, LLP. Kearn more at www.jaklelaw.com.
