Law Office of Sally Cooperrider

ELEMENTS OF AN ESTATE PLAN

If you would like to establish an estate plan, the common elements are:

1) A revocable (living) trust – The trust becomes the owner of your property, rather than you as an individual. You have full power over it during your lifetime, and at your death, your Successor Trustee controls the trust. The Trustee distributes your property according to your wishes stated in the trust, without going through the probate court. There is also a deed to transfer your house and other real property to the name of the trust.

2) A pourover will – The will serves as a backup document for property or accounts that didn’t get titled to the trust. In it you can also state your wishes regarding cremation or burial, and you can nominate a guardian if you have minor children.

3) Power of Attorney for finances – The Power of Attorney gives your agent the power to manage your finances if you become incapacitated.

4) Advance Health Care Directive – In the health care directive you specify who would make medical decisions if you’re are not able to do so. You can also include other preferences, such as to what extent you would want life support if you were in a coma or otherwise unable to communicate.

Sally Cooperrider

210 N. Fourth St., #201

San Jose, CA 95112

(408)287-7719

Sally.Cooperrider@SBCGlobal.net

Having estate planning documents notarized is more difficult when you can't go to your lawyer's office personally, but it can be done. Notaries have been designated as an essential business (at least while notarizing essential documents), so some notary offices are still open, such as at UPS stores.  Also, California law doesn't allow California notaries to do remote online notarization (RON), but many states now allow it. Some of those allow it only for residents of their states, but others, such as Florida, allow notaries to notarize documents for people physically located anywhere.  The National Notary Association keeps current with the status of RON in the various states. 

 https://www.nationalnotary.org/notary-bulletin/blog/2020/03/states-emergency-action-remote-notarization

Many people think about their mortality and whether they have their affairs in order during a time like the current pandemic.  It is also more difficult to meet with an attorney to discuss their estate planning at this time.  Many attorneys (including me) are still operating, but are meeting with clients by phone, Zoom, or other videoconferencing.  Once the documents are drafted, having them notarized or witnessed is another challenge.  At this time notaries at UPS stores and some other locations are still notarizing. Wills in California need to be witnessed by two people, so that takes some creativity, such as having a front porch witnessing with neighbors signing as witnesses. The requirements in California for other documents are:

Powers of Attorney:  notarized or witnessed by two people

Advanced Health Care Directives:  notarized or witnessed by two people

Trusts:  Notarizing is generally done, but it is not actualy legally required. It is preferable, in order that there be no question about who signed the trust.

Deeds:  Notarizing is required

Holographic Wills:  No witnessing or notarizing required

A holographic will is written by the testator (person making the will) in their own handrwriting and signed and dated by the the testator.  A holographic will is not ideal, since people that are not experienced in writing wills and how the language is interpreted can sometimes create ambiguity.  But the holographic will can at least as a stop-gap state who will receive the person's property when they die (beneficiary/ies), and who will be in charge of distributing it (the executor).  A will does not avoid probate of a house or other property that is worth more than $160,000 and has no beneficiary or joint owner.  It simply determines the beneficiary/ies and who is the executor. A will can also state instructions about burial, cremation, and memorial services. 

Let's all stay safe so the estate planning documents can give peace of mind but not be needed until a long time in the future. 

Myth – Everyone needs a will

Truth – If you die without a will and you have money or property that doesn’t have beneficiaries and is not in trust, then the property will pass to your next of kin (called intestate succession). In California the priority order for next of kin is:

First your spouse or domestic partner(all of community property and part of separate property), if none then children, if none then grandchildren and other descendants; if no spouse or descendants, then parents, if none living then siblings, if none living then nieces and nephews, etc.

So if you want your money and property to go to your next of kin, and if you don’t want to specify anything else, like who would be the guardian of your minor children, who would distribute your property (executor), or instructions for your funeral or burial, then you may not need a will.

Even if you decide not to have a will prepared, you still might want to consider a power of attorney for your finances, and an advanced health directive, in case you become unable to make decisions or manage your own affairs.

For more information see www.Cooperriderlaw.com , or for more details on intestate succession see: http://www.nolo.com/legal-encyclopedia/intestate-succession-california.html

Myth – If I have a will, my estate won’t have to go through probate.

Truth – A will specifies who will receive your property when you die, and who would be in charge of distributing it (executor). In a will you can also specify guardians of minor children and cremation or burial instructions. It doesn’t affect whether your estate needs to be probated.

Probate is necessary if you have money or property when you die that:

a) Is worth more than $150,000 total, that

b) Doesn’t go to a joint owner or beneficiary, and

c) Is not in trust

If you have property that would be probated, such as a house, you can avoid probate for your heirs by creating a living trust.

For more information see the http://www.cooperriderlaw.com/estate-planning

LEGAL MYTH OF THE WEEK (or so). Week Three: What happens if I die without a will

Myth – If I die without a will my property will revert to the state.

 Truth – The only time that property ends up with the state after a person dies without a will (dies intestate) is if no relatives can be found. The State of California, as well as other states, has a default order of inheritance, called intestate succession, for people that die without a will. The first is spouse (for community property) or spouse and children (for separate property). If no spouse, then children, if no children then grandchildren and other descendants, if none then parents, then siblings, then nieces and nephews, etc.

What a will does accomplish is to allow for giving property to other people or in other proportions than by the default scheme. In the will you can nominate an executor that will be in charge of carrying out the will. Also, you can nominate a guardian of the estate and of the person for minor children, and give instructions for your burial and funeral.

The State Bar pamphlet linked below has more information.

http://www.calbar.ca.gov/Public/Pamphlets/Will.aspx

Myth – If I buy a car but change my mind, I can take it back the next day.

Truth – Most contracts in California are final once they’ve been signed by both parties, particularly if you’ve received something of value (like a car).

There are particular contracts in California that have a cancellation period, such as Credit Repair Services, Dating Services, Funeral contracts, Door to door sales contracts, Internet sales when the order hasn’t been filled yet, service contracts, and weight-loss services. Note that these are generally contracts where no product or service has been provided yet. This is an incomplete list. For more information see the California Department of Consumer Affairs http://www.dca.ca.gov

Myth – If I get married, all my money and property will turn into community property.

Truth - Whatever interest in property you bring into a marriage remains your separate property, unless your transfer title to your spouse (or anyone else), or if separate funds are so commingled with community funds that the separate funds can’t be traced. (Like my twisty ficus tree below.)

New investments during the marriage that are added to separate property (such as using earnings to pay down the mortgage or to remodel) generally create a community interest in the property.

Similarly, the amount in a 401(k) or other pension from before the marriage remains separate property and new investments into it during the marriage are community property.

Caveat: This is not intended to be legal advice. With any legal rule there are exceptions and special circumstances so that these general rules might vary in a particular case.

Myth – If I get married, all my money and property will turn into community property.

Truth - Whatever interest in property you bring into a marriage remains your separate property, unless your transfer title to your spouse (or anyone else), or if separate funds are so commingled with community funds that the separate funds can’t be traced. (Like my twisty ficus tree below.)

New investments during the marriage that are added to separate property (such as using earnings to pay down the mortgage or to remodel) generally create a community interest in the property.

Similarly, the amount in a 401(k) or other pension from before the marriage remains separate property and new investments into it during the marriage are community property.

Caveat: This is not intended to be legal advice. With any legal rule there are exceptions and special circumstances so that these general rules might vary in a particular case.