Probate and Estate Planning

Probate is the legal process whereby a person’s debts are paid and assets are distributed upon death. California law directs the probate court how to distribute the deceased person’s estate. Estate planning is the process of setting up legally effective documents outlining arrangements for the distribution of your estate upon death or incapacity.

Probate

Probate is the court-supervised, legal process that oversees the administration of a deceased person’s estate.  The Will is determined to be your final dispositive statement and which confirms the appointment of the person or institution you have named to administer your estate.  As part of this process, your assets are gathered, applied to pay debts, expenses of administration, and distributed to those designated as beneficiaries in the Will.  If a person dies without a Will (“intestate”), the probate court appoints a person to receive all claims against the estate, pay creditors, and distribute all remaining property in accordance with state law.

Advance Health Care Directive

(Also know as Living Wills)  This is an instrument whereby you can instruct doctors, nurses and other care givers to make health care decisions (how you want to be medically cared for) in the event you are incapacitated or in a vegetative state.  The directive appoints a trusted person to act as your advocate and decision-maker in health care matters if you are unable to speak for yourself.  A HIPPA consent form is included so your health care advocate can access your medical information.  In this document, you can also state whether or not you want life support systems in the event that you are in an irreversible comatose or similar state, whether you want to donate your organs, and your preferences as to the disposition of your remains.

Wills

A Will is a written legal document which provides instructions for the distribution of an individual’s property upon death.  If you do not have a Will, your property will pass to your heirs according to California law (“intestate”).

Living Trust

A Trust is a legal document whereby you direct who will manage your property in the event of your incapacity, and directs the distribution of your property upon death.  It is a type of legal entity which is used to hold legal title to property for the benefit of one or more persons.  It allows your family to avoid the expense and delay of probate and helps protect the privacy of your family’s private financial information by not making it part of the public record through a probate proceeding.

Conservatorship

A Conservatorship is the court-supervised administration of your estate during any period that you are unable to do so yourself due to incapacity.  In this process, the court determines whether a person is mentally capable of handling his/her personal and/or financial affairs.  The probate court authorizes the conservator to handle the daily management of your estate.  The court will also assume control of your assets and monitor the conservator’s handling of the assets.

Durable Power of Attorney

A power of attorney is a written document stating that one person gives to another the full power and authority to represent him or her.  A durable power of attorney is a form of agency whereby the person who gives the power is the principal, and the person who receives the power is the attorney-in-fact or agent.  In this context, durable means that the agent’s power will survive the principal’s incapacity or disability.  The two types of Durable Power of Attorney are the Financial Durable Power of Attorney and a Healthcare Power of Attorney.