I have been working with a couple for a few years in order to draft them a full estate plan that meets their needs and accomplishes their goals. We have gone through multiple drafts of their Trust and other estate planning documents throughout the years. They did not have children and thus were having difficulty deciding who should oversee their medical decisions if both were incapacitated and who should be in charge of their estate after they have both passed, as well as who their beneficiaries should be.
During all of our time working together, no estate planning documents were ever signed. It is very common to not sign any estate planning documents until the entire plan is ready. However, if there is going to be a long delay between the initial drafting and the signing of the estate plan, then it would be safer to sign temporary estate planning documents, such as a Will, Power of Attorney, and Advanced Health Care Directive, just in case something unexpected were to happen.
One of my clients unexpectedly passed prior to signing their estate plan. Since there was not a Trust in place, all of my deceased client’s separate property was required to go through probate. Additionally, because it was separate property that was going through the probate, my living client was only entitled to half of it with the other half going to my deceased client’s family. This is because California law states that when a person dies without a Will, separate property will pass in a situation where a deceased person is married without children even though my deceased client was completely estranged from his family.
In this situation we would not have been able to avoid probate because my clients were still in the process of drafting their estate plan so that beneficiaries and fiduciaries were correct. However, if during the years that we had been working together, my clients would have signed temporary Wills, where each other were the sole beneficiary and nominated executor, all of my deceased client’s separate property would have passed to his spouse—which is what they would have wanted.
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