Frequently Asked Questions

ADVANCED HEALTH CARE DIRECTIVES

Why do I need an Advance Health Care Directive?

Answer: When every family member is in agreement regarding decisions about your health care, there usually is no problem. However, if there is disagreement, the hospital and/or doctors will want to deal with the person or persons holding the authority to make decisions on your behalf. That is where a properly executed Advance Health Care Directive comes into play. You nominate the person or persons that you want making the ultimate decisions regarding your health care. Without this document, no one has the authority, and the result could be someone having to spend a lot of money on attorneys as well as a lot of time in order to obtain conservatorship over you from the court. In my opinion, everyone 18 years of age or older should have a validly executed Advance Health Care Directive.

What if a doctor or hospital refuses to accept my nominee agent’s authority to act on my behalf under an Advance Health Care Directive?

Answer: The California Probate Code provides remedies against the doctor or hospital that wrongfully refuses to acknowledge your agent’s authority under a validly executed Advance Health Care Directive.

DURABLE POWERS OF ATTORNEY

Why do I need a Durable Power of Attorney when I already have my child listed on all of my accounts?

Answer:. Listing anyone on your accounts other than you is a dangerous course of action. First of all, it allows that person to withdraw any or all of the funds without recourse. Second, once you add someone else to your accounts, the only way to remove him or her from the accounts is with his or her permission, unless you want to withdraw all of the money and close the accounts altogether. Finally, and most troubling, is that if your child has any creditor problems as a result of financial hardship, lawsuits, etc., his or her creditors can (and probably will) attach your accounts to satisfy your child’s debts. With a validly executed Durable Power of Attorney, you can add your child’s name to your accounts and he or she will not have an ownership interest in your accounts for creditor purposes. But, your child will be able to transact business on your behalf.

My father named me as the agent to act for him under his Durable Power of Attorney. When the time comes for me to act, do I need proof that he is incapable of acting on his own?

Answer: It depends. If your father executed a springing Durable Power of Attorney, then you will have to provide the proper evidence of his incapacity before being able to act for him. If, on the other hand, he executed a nonspringing Durable Power of Attorney, then you can begin acting for him at any time without proof of his incapacity.

Can I continue to act as my parent’s agent under the Durable Power of Attorney after death?

Answer: No. Your authority expires upon the death of your parent, and you should no longer act under the Durable Power of Attorney.

WILLS/PROBATE

If I sign a Will, does that mean my estate will avoid probate?

Answer: Generally, no. Wills are what get administered through the probate process. Assuming you have enough assets that would be subject to probate, if you wish to avoid probate, you should consider a Living Trust as an option.

If my estate goes through probate upon my death, does the state take my assets? Are there extra taxes?

Answer: No and no. The major expenses of probate are the attorney and/or Executor fees. Click here to see California’s schedule of fees for probate.

I thought I had to have $1 million or more for my estate to be subject to probate. Is that true?

Answer: No. In California, if your assets subject to probate in California exceed $100,000.00, your estate will go through probate upon your death.

Are all assets subject to probate?

Answer: No. Assets held in a valid Living Trust, joint accounts, and those with listed beneficiaries are generally not subject to probate.

LIVING TRUSTS

When do I need a Living Trust?

Answer: The simple answer is that no one “needs” a Living Trust. However, those who own any real estate (including residences with mortgages), have minor children, or have more complicated distribution wishes should at least consider a Living Trust as an option.

If I sign my Living Trust, is that all that needs to be done in order for my estate to avoid the time and expense of probate?

Answer: No. In order for your estate to avoid probate, ownership of your assets needs to be transferred into the name of your Living Trust with you as the Trustee (or have the Trust named as beneficiary for certain assets). Any assets not listed in the name of your Trust as owner (or beneficiary where applicable) could be subject to probate. This process is called the funding of the Trust, and is a necessary step in the proper completion of your Living Trust.

If I complete a Living Trust, can I still do whatever I want with my assets or am I restricted in what I can do with them?

Answer: Because you are the Trustee of your Living Trust, you are still 100% in charge of your assets, and can do everything with your assets that you were allowed to do before you completed your Living Trust. You do not even have to file extra tax returns.