This is part 9 in my series, Estate Planning – What You Need to Know.
Part 9 – Other Documents You Need.
When you create a revocable living trust as the central piece of your estate plan, you should also include a pour-over will.
A revocable living trust only controls property that you have transferred to it. If you die without transferring your property to the trust, such as real property, bank accounts or investment accounts, the omitted assets will not be owned by the trust.
This is where the pour-over will comes in The pour-over will instructs your personal representative to literally pour-over the omitted assets into the trust and distribute those assets as if they were part of your revocable living trust.
This is an effective tool for getting your assets to the right person. But I don’t recommend you rely on the pour-over will.
The better approach is to take the steps to formally transfer your assets to your trust. Assets distributed to your trust after your death via the pour-over will be subject to probate. And if your assets have to go through probate, you will have defeated one of your primary objectives of creating your revocable living trust, AVOIDING PROBATE.
The better approach is to consider the pour-over will as a safety net, which insures your assets get to the right person. But be diligent in funding your trust.
Health Care Documents
Your estate plan should include an Advance Health Care Directive, also referred to as a Power of Attorney for Health Care.
The Advance Health Care Directive accomplishes two objectives. First, it authorizes your spouse, children or close friend (referred to in the document as your “agent”) to make health care decisions on your behalf if you are unable to do so.
The Directive gives your health care agent the right to, among other matters:
- Consent or refuse consent to medical care or services
- Choose or reject your physician
- Consent to the release of medical information
- Donate organs, authorize an autopsy and dispose of your body.
Second, the Advance Health Care Directive includes a provision for you to state your intent regarding life support if you are seriously ill.
We generally use the following provision by the California Medical Association:
I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allows me to die as gently as possible.
Most of my clients are comfortable with this language and include it in their Advance Health Care Directive.
In addition to the Advance Health Care Directive is the HIPAA (medical privacy act authorization).
The HIPAA authorizes your doctors and hospital staff to talk to your health care agents about your medical condition. Without a HIPAA, hospital red tape could kick in and delay vital communications with your health care agents.
Durable Power of Attorney
The Durable Power of Attorney authorizes the agent you name to manage your assets for you if you become incapacitated.
This is an important document if you have a revocable living trust, but a vital document if you don’t have a living trust.
If you become incapacitated and you don’t have a Durable Power of Attorney, no one will have the authority to get to your accounts or other assets. So your family would have to go to court to have a judge appoint someone as your conservator. This is not something you want. A conservatorship can be worse than a probate.
With a conservatorship, someone, hopefully someone that knows and cares about you, would be appointed by the court to manage your affairs.
A conservatorship is expensive and becomes a hardship on the person the court chooses to manage your affairs.
Bottom line. When you do your estate planning, make sure you get all the important documents.