Though it is not the most pleasant task, preparing a Last Will and Testament is one of the most important things you can do for your family. A will provides needed direction to your family at your death. Without a will, the State of California establishes how your estate is managed and distributed. Uncertainty as to your intent among family members lends itself to arguments and ill will towards fellow family members. A Will can help you clearly define your intent so that family members won’t have to guess.
What do you accomplish by Writing a Will?
It is important to understand that a will only takes effect after death. A will is not filed in the courthouse or any other place until that time.
There are two basic types of trusts: revocable and irrevocable.
A revocable trust can be altered or revoked during the life of the grantor (the person who creates the trust). While the assets held in a typical revocable trust at the decedent’s death do not have to go through probate, they are generally subject to the estate tax (if the estate is larger than the exemption amount then in effect). Conversely, an irrevocable trust generally cannot be altered after you create it. Many irrevocable trusts are used to minimize or avoid estate and gift taxes.
For larger estates, our firm has experience in using valuation discounts and other tax-advantaged gifting strategies allowed by the Internal Revenue Service. We use specialized trusts and limited liability entities to accomplish this goal.
The two most common types of powers of attorney are:
Medical power of attorney — This document names the person who is empowered to make decisions about your health care if you become incapacitated.
Financial power of attorney — this document names someone who can make decisions about your financial affairs if you become incapacitated.At the Law Offices of John J. Thyne III, we remind our clients that powers of attorney are not only associated with severe illness, dementia or medical disasters. Young parents for example, may feel more comfortable when they give a grandparent or some other trusted individual a power of attorney delegating parental powers in case they are inaccessible at a time of a child’s need. Powers of attorney can be durable (permanent), or they can be for set periods of time. A “springing power of attorney” can be set up so that it only becomes effective in the event that you are diagnosed as incompetent. One very important thing to remember about a power of attorney is that it ceases to have any legal effect when the person who signed the POA dies. After death, the legal authority of a POA terminates and family members must then turn to a trust, if any, or file a probate court action in order to have authority to act for the estate.
If the decedent expressed a desire not to donate or there is reason to believe the gift is contrary to the decedent’s religious beliefs or a person with priority objects, the gift cannot be made. Only persons in the highest priority class available can consent.
The decedent, while living, can make the gift (to take effect on death) in a will or any writing. The writing need not be witnessed or delivered. The donee does not have to be identified. In the absence of specification of the donee, the attending physician at death may accept the gift. The donor can designate the doctor who will carry out the gift.
When someone other than the decedent makes the gift the gift must be made in writing or a recorded message.
Paying or even offering to pay for an anatomical gift is a misdemeanor and a felony if repeated, at least if the payment is to the donor or persons making a gift of a decedent’s organs. Whether or not payment to family members who are not involved in the consent is permissible has not been decided.