26th Aug 2015

Estate Planning may seem like something only older, extremely wealthy people need to think about. However, this is not the case. Estate planning is something everyone should not only think about, but also prepare for. Once something happens to us, that either incapacitates or cause us to pass away, we no longer have the power or authority to make decisions according to our wishes. This is why it is so important to plan in advance and make sure you have explicitly designated how you would like your affairs to be handled.

There are many different parts to an Estate Plan; The Will, The Revocable Living Trust/Family Trust, and an Advance Health Care Directive. Other areas to consider are a Durable Power of Attorney, Beneficiary Designation, and concerns regarding Joint Ownerships.

First, let’s start with The Will. You can be quite specific in your will regarding who will be the executor, additionally the executor can also be a beneficiary under The Will. You can name a specific person you prefer; however, there are a few things you should consider in naming this person as they will be handling the distributing of your property and assets, decisions regarding the care of any minor children or children with special needs, maintaining property, paying bills and taxes, as well as making court appearances. For these reason it is important that you choose wisely.

Additionally, you can also designate an alternate executor. Here at Tompkins Law, we strongly suggest you name at least one alternate executor in the event that your executor decides they are unable to act as your executor or simply changes their mind. In the case that this happens and you have no alternate designated, the above mentioned responsibilities will be decided by a court. There are a few restrictions regarding who can be an executor; executors must be at least 18 years old and they must be deemed of sound mind by the court.

Although you are not able to name specific executors to handle certain aspects of The Will, you can name co-executors to assist with certain aspects. An example of this is if you own a business and you want to name your spouse as the executor of The Will, but you worry that they may not handle the business aspects properly because they were not a part of the business, then you have the option to name a business partner or someone else involved in the business to ensure that those portions of The Will are handled to your satisfaction.

As for the distribution of your property and assets as well as the care of dependent or special needs children, you can be quite specific in how you would like these things to happen. Perhaps you would like a certain asset to be distributed among more than one person, or perhaps at a later date. Specifics such as these are possible and I can help you in making sure that these aspects are written properly.

A Revocable Living Trust is often called a Family Trust. A Family Trust is similar to a will in that you name a personal representative and designate beneficiaries to receive your property. However and quite importantly, the Family Trust doesn’t go through probate. Among the many superior qualities of the Family Trust is that you can have your successor trustee (personal representative) handle your affairs during periods of incapacity during your lifetime, which is something that is not possible with a will.

Additionally, choosing a Family Trust over a will avoids probate, which can save you thousands of dollars in probate fees and costs. Another benefit of the Family Trust is the privacy you can retain in that it is not a court record and there is no court case. All matters handled by a Family Trust are done so in the same way as with a will, but with no court involvement.


In certain situations in which you are incapacitated or deemed unable to make sound decisions, a will cannot be executed. In many states a living will would be the source of information providing guidance on how to proceed in these circumstances. However, in California living wills are not used. In place of this option, Tompkins Law use an Advanced Health Care Directive along with a Durable Power of Attorney to assist you in how you would like things handled such as: medical care, resuscitation preferences, handling your affairs while incapacitated, and distribution of property and assets that you see fit for such a circumstance.

You have many options in designating both a trustee and beneficiaries as well as exactly how and what you would like done in regards to how your medical care is handled. As these items of concern are expansive, can vary and can be quite personal, this is something I can help you specify while helping you prepare. As it is possible that certain medical procedures or situations may arise while you are incapacitated, it is wise to designate someone as a Durable Power of Attorney. This person will be responsible for making decisions regarding your medical care in the event that what you have designated in your Advanced Health Care Directive does not provide instructions regarding how you would like these handled.

Another area that a Durable Power of Attorney can be made more specific is in the area of finance. While you are not able to handle your affairs, they will be still happening without you. In this situation you can name someone to be responsible for managing your finances, so that once you regain your abilities you do not have a financial disaster to straighten out.

Certain aspects like retirement savings plans and accounts, education savings accounts, life insurance policies, and annuities often allow for Beneficiary Designation through their specific documents. In this case you will want to consider making sure these are up-to-date while securing your Estate Planning. I can help you organize and clarify this information, so that you can keep these documents readily available with your other Estate Planning documents.

Most often, these types of accounts can be handled quite specifically through the company providing them. You may even be able to designate certain portions of these assets to certain individuals. For more information regarding these items, please contact me for a free 30 minute consultation.

Finally, another area of concern for being very specific regarding your planning you will want to be informed regarding how Joint Ownership situations are handled. If you do not plan accordingly for these circumstances, the decision making rights can be easily handed over to the courts and your wishes may not be followed. Joint Ownership Rights and Rights of Survivorship can be very tricky to understand, but it is important to be specify your wishes regarding these matters to avoid the unfortunate case of the courts determining how your affairs and property should be handled. There are certain designations that can be made in some circumstances to help you ensure that your wishes are met.

Estate Planning is a crucial aspect to guaranteeing that your affairs, property, assets, and medical care are handled according to the way you would like them handled. No one can be sure what will happen in the future, accidents can strike at any moment and that is why it is extremely important that you are prepared. In the event that you are unable to have your wishes heard or to make decisions, you will not want the courts to simply decide what happens to you, your family, or your property. Contact me today, so that I can help you properly prepare your estate and ensure that you and your family benefit from these documents exactly as you wish them to be. Legal terminology, documents, and decisions can be confusing and that is why I would like to help you carefully and completely understand your rights.

Call me directly at 1-714-385-0044 or send me an email here: mdetlaw@juno.com to schedule a free 30 minute consultation

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