A will is a traditional manner of naming who you want to handle your final affairs (your executor) and who you want to receive your assets after you die (your beneficiaries).

Unfortunately, your will controls only the assets that are titled in your name alone. It will not affect assets that are titled in joint ownership, such as joint tenancy. Additionally, it does not control assets with beneficiary designations, like your IRA, retirement benefits or life insurance policies. With respect to assets that are controlled by your will, these assets will have to go through a court-controlled process called "probate".


What is a Probate?

Probate is the name given to the court-supervised process developed under California law that handles the administration and subsequent distribution of your assets pursuant to the terms and desires expressed in your will. In short, probate means the process by which your assets are gathered, applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in your will. To initiate the probate of a will, an individual, typically the person named as executor in your will, files the original will with the local Superior Court along with a petition asking the court to "admit" the will to probate. After notice is given, and a hearing is held, if all is in order, your will is admitted to probate, and your executor is formally appointed by the court.

While probate is a clear and orderly process, it can, in many situations, be unnecessarily time-consuming and expensive. In larger counties, such as Los Angeles County, the process will customarily consume at least six months, if not longer, and legal and executor fees may well be greater than comparable services rendered in the administration of a revocable trust.

What is a Revocable Trust?

A revocable trust (sometimes referred to as a "living trust") is a written agreement between the person creating the trust and the person named to manage the assets of the trust (typically yourself during your lifetime). The revocable trust will also name the person and/or financial institution who would handle your assets in the event of your disability and their distribution in the event of your death.

A revocable trust may be amended or revoked by you at any time during your life, as long as you are competent. The terms of the trust become irrevocable (not subject to change) after your death. Because a revocable trust contains provisions that direct the distribution of your assets on or after your death, the trust acts as a "will substitute" and eliminates the need for the probate of your will with respect to those assets that were held in the name of your trust at the time of your death.

In so doing, the use of a revocable trust can, if implemented properly, eliminate the need for probate of your assets held in the name of your trust, thus avoiding additional legal and probate fees and, perhaps, unnecessary delays in the administration and distribution of your estate. Additionally, a revocable trust allows you to control the disposition of your assets long after your death, as well as prevents the court from controlling your assets at your incapacity. Even with a revocable trust, however, a will (often referred to as a "pour-over" will) should be executed in order to be certain that any assets not in your trust at the time of your death will be distributed in accordance with your wishes as expressed in your revocable trust.

As you can see, trusts are not only for the wealthy. Anyone desiring to control when or how their assets are distributed, following their death, should consider a revocable trust. In summary, a revocable trust can avoid probate at death, prevent court control of assets at incapacity, provide privacy (since a revocable trust is not a public document), allow quick distribution of assets or control the distribution of assets following your death, prevent unintentional disinheritance that can occur through intestate succession, and reduce or eliminate estate taxes.

Disposition Outside of the Will

It is important to understand that the transfer of your property after your death may be determined by someone other than the laws of intestacy, even when you die without a will. Title to certain categories of property may pass outside the probate estate. Generally, upon your death, your half of any community property presumptively belongs to your surviving spouse. Additionally, if you own property with another person as joint tenants with right of survivorship, the property will pass directly to the remaining joint tenant upon your death and will not be a part of your probate estate (it will, however, be a part of your taxable estate). Effective planning requires a knowledge of the consequences of each property interest and type of ownership.

California Advance Health Care Directives

Your Health Care: Who will Decide when you Can't?

California law provides each of us with the ability to make sure that our health care wishes are known and complied with in the event we are unable to make these decisions ourselves.

The Advance Health Care Directive is the result of a new law that became effective July 1, 2000. The new law repeals the provisions governing Durable Powers of Attorney for Health Care and the California Natural Death Act and revises and recasts these provisions as part of a new Health Care Provisions Law.

What Is An Advance Health Care Directive?

Under the new law, Advance Health Care Directives include individual health care instructions regarding health care decisions for you and powers of attorney for health care (similar to the former durable powers of attorney for health care). The Advance Health Care Directive also encompasses what was formerly included in a "living will" since individual health care instructions can now include your wishes about refusing or accepting life-sustaining treatment.

An Advance Health Care Directive allows you to do either or both of two things. First, you may appoint another person to be your health care "agent". This agent (also known as your "attorney-in-fact") will have legal authority to make decisions about your Medicare if you become unable to make these decisions for yourself. Second, you may write down your health care wishes in the Advance Health Care Directive form -- for example, a desire not to receive treatment that only prolongs the dying process if you are terminally ill. Your doctor and your agent must follow your lawful instruction.

Is an Advance Health Care Directive Different from a "Durable Power of Attorney for Health Care"?

The Advance Health Care Directive has replaced the Durable Power of Attorney for Health Care (or "DPAHC") as the legally recognized document for appointing a health care agent in California. The Advance Health Care Directive allows you to do more than a DPAHC. An Advance Health Care Directive permits you not only to appoint an agent, but also to give instructions about your own health care.

Is an Advance Health Care Directive Different from a "Living Will"?

The Advance Health Care Directive is now the legally recognized format for a living will in California. The Advance Health Care Directive allows you to do more than the traditional living will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill.


What if I have already Executed a Durable Power of Attorney for Health Care or a Natural Death Act Declaration?

Previously executed Durable Powers of Attorney for Health Care and Natural Death Act Declarations remain valid. Thus, unless your existing DPAHC has expired, you do not have to complete a new Advance Health Care Directive. Because the new Advance Health Directive gives you more flexibility to state your health care desires, you may wish to complete a DPAHC or Natural Death Act Declaration. At minimum, you should review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and still accurately reflects your wishes.

Whom May I Appoint as my Health Care Agent?

You can appoint almost any adult to be your agent. You can choose a member of your family, such as your spouse or an adult child, friend, or someone else you trust. You can also appoint one or more "alternate agents" in case the person you select as your health care agent is unavailable or unwilling to make a decision.

The law prohibits you from choosing certain people to act as your agent(s). You may not choose your doctor, or a person who operates a community care facility or a residential care facility in which you receive care, or their employees, unless that person is related to you by blood, marriage, or adoption, or is a co-worker.

How Much Authority will my Health Care Agent Have?

If you become unable to make your own health care decisions, your agent will have legal authority to make health care decisions for you. Your agent must make decisions that are consistent with any instructions you have written in the Advance Health Care Directive form or otherwise made known to your agent. Physicians and other health care professionals will look to your agent for decisions rather than your next of kin or any other person.

If you have not made your wishes known, your agent has broad powers to decide what is in your best interests, considering your personal values to the extent they are known. However, under no circumstances can your agent authorize certain procedures specified by statute, including conclusive treatment, psychosurgery, sterilization, abortion, or placement in a mental health treatment facility.

Some of the specific powers which can be given (or denied) to your agent in the Advance Health Care Directive are the power to terminate life support, and the powers, after you die, to make organ donations, authorize an autopsy, and direct the disposition of your remains.

Can I Change my Advance Health Care Directive?

You can revoke or change an Advance Health Care Directive at any time. To revoke the entire form, including the appointment of your agent, you must inform your treating health care provider personally or in writing. Completing a new Advance Health Care Directive will revoke all previous directives. In addition, if you revoke or change your directive, you should notify every person or facility that has a copy of your prior directive and provide them with a new one.

How Long is an Advance Health Care Directive Valid?

An Advance Health Care Directive is valid forever, unless you revoke it or state in the form a specific date on which you want it to expire.

Who Can Complete an Advance Health Care Directive?

Any California resident who is at least eighteen (18) years old (or is an emancipated minor), of sound mind, and acting of his or her own free will can complete a valid Advance Health Care Directive.

Can I be Forced or Required to Sign an Advance Health Care Directive?

No. The law specifically says that no one can require you to complete anAdvance Health Care Directive before admitting you to a hospital or other health care facility, and no one can deny you health insurance because you choose not to complete an Advance Health Care Directive.

Do I Need a Lawyer to Complete an Advance Health Care Directive?

No. You do not need a lawyer to assist you in completing an Advance Health Care Directive form. The only exception applies to individuals who have been involuntarily committed to a mental health facility who wish to appoint their conservator as their agent.

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