You can only stay in charge of your future affairs if you plan ahead. Tax laws allow you to build a retirement nest egg in special tax-deferred accounts. The law allows you to prepare written instructions regarding medical treatment in case you become incapacitated. It allows you to appoint someone to make decisions for you if it ever becomes necessary. It allows you to decide who will inherit your property someday. But the right to have your wishes carried out later is worthless unless you act now--while you still can.
You can take certain legal steps. A power of attorney is a written legal document that gives another person the right and authority to act on your behalf. (Prob. § 4022) That authority will end if you become incapacitated--unless you have a durable power of attorney. A durable power of attorney will remain in effect if you ever become incapacitated. (Prob. § 4124) This means that if you were suddenly unable to handle your own affairs, someone you trust--your legal agent or attorney-in-fact--could do so for you. Or you might choose to set up a springing power of attorney, which would only become effective at a specified future date or event, such as if you were to become incapacitated. (Prob. § 4030)
You can authorize your agent to simply pay your bills. This is usually a safer arrangement than adding someone else's name to your bank account. Or you can empower your agent to handle nearly all of your affairs. Your agent, however, cannot take anything of yours as a "gift" without your specific written authorization. (Prob. § 4128) These powers of attorney all expire when you die. (CC § 2357; Prob. § 4152) Make sure that you understand all of the terms before signing a power of attorney. Be absolutely certain that your chosen agent is both capable and trustworthy. Seniors have lost their life savings to unscrupulous agents--even to agents who are family members.
With an advance health care directive, you can designate someone to make medical decisions for you in the event that you become unable to do so for yourself. (Prob. §§ 4605, 4629, 4682) You could name an alternate agent as a backup. And you can include instructions regarding your future medical care, such as life-support treatment. Simply fill out the available printed form. It must be notarized or witnessed by two qualified individuals. (You can revoke the directive at any time, as long as you are still competent.) Give copies to your health care agent, alternate agent, doctor, health plan representatives and family. And if you are admitted to a hospital or nursing home, take a copy with you. Consider registering your directive with California's Secretary of State as well. By doing so, health care providers and other authorized individuals may be able to obtain information from your directive in an emergency if your agents or family members cannot be reached. (Prob. §§ 4800-4806) To obtain an advance health care directive kit (in English or Spanish) for $6, call the California Medical Association at 800-882-1262 (www.cmanet.org) or find one on the state Office of the Attorney General's website (www.oag.ca.gov).
You may also consider completing a Physician Orders for Life-Sustaining Treatment (POLST) form if you are terminally ill or in frail health. Signed by your physician, this new form (effective in 2009) allows you to give specific end-of-life treatment instructions regarding, for example, your pain management, cardiopulmonary resuscitation, feeding procedures and other medical interventions. It has the force of a physician's medical order and remains with the patient wherever he or she receives care. It does not, however, replace the traditional advance directive, which includes other instructions. (Prob. §§ 4780-4785) For more information, talk to your doctor or go to www.coalitionccc.org.
The term "living will" is used to describe a legal document that states an individual does not want life-sustaining treatment if he or she is terminally ill or permanently unconscious. It should not be confused with a will or a living trust, which serve different purposes. In 2000, the advance health care directive became California's legally recognized format for a living will. It is more flexible than a traditional living will, allowing individuals to give various health care instructions in advance and appoint someone who will make his or her health care decisions if necessary.
The advance health care directive also replaced the durable power of attorney for health care (DPAHC). However, if you already executed a DPAHC and it has not expired, it would still be valid. Or, if you previously executed a Natural Death Act Declaration (California's old format for a living will), that, too, would still be valid. You do not need to replace it with the more comprehensive advance health care directive unless you choose to do so.
Yes. To consent to medical treatment or make a legal contract, for example, you must be able to understand the nature and consequences of your actions. The law refers to this as having sufficient capacity. (CC § 38; Prob. §§ 811-813) If you lose such capacity, the agent named in your durable power of attorney may step in on your behalf. If you haven't made such arrangements, the court may appoint a conservator.
A conservator is someone authorized by the court to manage your affairs. A conservator may be appointed if you become unable to make sound decisions, feed or dress yourself, handle your own finances or resist undue influence. (Prob. §§ 1800-1804) Conservators may be family members, friends or, in some cases, the county public guardian. But, unlike an agent with a durable power of attorney, a conservator will receive court supervision in the handling of your affairs. (Prob. § 1851.5) You should be aware that a conservatorship can be expensive. (If you receive SSI/SSP or certain other government benefits, you could qualify to have the court fee waived.)
You can nominate your own conservator in an advance health care directive for a judge's future consideration. (Prob. § 4672) Even after a petition for conservatorship has been filed, you can nominate your own conservator if you have sufficient capacity to do so. (Prob. § 1810) If someone seeks to have a conservator appointed for you, you must be notified and may oppose the conservatorship in a court hearing. (Prob. § 1828)
Yes. You need a will if you want any control over who will inherit your property. Even if you own very little, you can earmark a particular piece of jewelry or a cash gift for a person or charity of your choosing. You can nominate guardians for your young children. You can express your funeral and burial wishes. You may name an executor to carry out your wishes. The executor, who must be officially appointed as your personal representative by a judge, will collect and manage your assets, pay off debts and distribute your property. (Prob. §§ 58, 6101, 8400-8402, 8802, 9050)
Your will may be handwritten, or you can fill out a California Statutory Will. This may be useful if you have very few assets. (This form can be printed out from the State Bar website. Go to www.calbar.ca.gov, then Public Services and Making a Simple Will.)
However, your will must meet strict requirements to be valid, and it should be kept up-to-date. If you do decide to revise it, do not make your changes on the original. You can amend your will with a separate legal document referred to as a codicil. You may want to consult an attorney before creating or changing such an important document. (Prob. §§ 6110, 6111, 6221, 6226)
If you die without a will (referred to as intestacy), your property will go to your spouse, registered domestic partner, children or next of kin, according to California's intestate succession laws. (Prob. § 6401) If you don't have a spouse, domestic partner or child, or your next of kin cannot be located, your property will go to the state. (Prob. §§ 6800, 11900-11904)
If you have a will, the executor named in your will starts the process by filing a petition in court and seeking appointment as your personal representative. Your personal representative will take charge of your assets, pay your debts and distribute the rest of your estate to your beneficiaries. This court process is known as probate. If you do not have a will, a relative or other interested person can start the process.
Simpler procedures are available for transferring property to a spouse or if the estate amounts to less than $150,000. (Prob. §§ 13100-13116, 13540-13545)
No. Generally a will does not control the distribution of life insurance proceeds, retirement plan assets, certain jointly owned assets, "transfer on death" or "pay on death" accounts and the assets of revocable living trusts. (Prob. §§ 5000 et seq) For more information on wills and estate planning, order free copies of the State Bar's consumer education pamphlets Do I Need a Will? and Do I Need Estate Planning? (See Resources.)
It is a partial substitute for a will. With a living trust, your assets are put into the trust during your lifetime and transferred to your beneficiaries when you die. Most people name themselves as the trustee who manages the assets. This allows you to remain in control of the living trust assets during your lifetime. You also can revoke or change your living trust. One advantage of a living trust is that the assets do not go through probate. And the distribution process often takes less time. (Prob. §§ 15000 et seq.)
A revocable living trust, however, does not remove all need for a will. Generally, you would still need a will--known as a pour-over will--to cover any assets that are not included in the trust.
Also, be aware that a living trust is not appropriate for everyone. Whether it is the best option for you will depend on your particular circumstances. Watch out for unqualified "advisers" who sell living trusts in "trust mill" scams and who seek to obtain seniors' private financial information for other purposes as well. (See Avoiding Consumer Scams.)
The free State Bar pamphlet Do I Need a Living Trust? can provide you with more detailed information (see Resources). And before creating such a trust, you should seek advice from a qualified estate planning attorney. (See Getting Legal Help.)
It depends on the circumstances. Property left to your spouse or a charity will not be subject to estate tax. The portion of the estate that is left to anyone else--even your children--will be taxed if your assets total more than $5.25 million in 2012. (IRS form 706, Pub. 950)
Under federal law, you could also give away as much as $14,000 in 2013--and $5.25 million during your lifetime--to each of your children or to anyone else without incurring gift tax. Actual amounts are subject to change. In addition, you could pay your grandchild's college tuition or medical insurance premiums (or anyone's tuition or medical bills, for that matter) free of gift tax--but only if the payments are made directly to the educational institution or medical provider. (IRS form 709) For information on estate tax and other gift tax exemptions, contact an estate planning attorney, or, call the IRS or state Controller's Office. (See Resources.)
No, not for more than three years--unless you deposit or withdraw funds or contact the bank. If an account or safe deposit box sits dormant for that long without any activity, the funds or contents will be turned over to the state. (This would not apply if you have another active account at the same bank or financial institution.) Before transferring the funds, the bank must send a notice to your last known address. (CCP §§ 1510-1521) To reclaim such funds or property, go to www.claimit.ca.gov or contact the Bureau of Unclaimed Property in the State Controller's Office. (See Resources.) Some 7.5 million notices were sent out between January 2007 and March 2012 urging owners to reclaim their state-held valuables.
In 2010, Congress increased the insurance coverage at Federal Deposit Insurance Corp.-insured banks and savings institutions and federally insured credit unions to $250,000 per depositor. If you have more in savings, you might consider dividing it up among different types of accounts (putting some away in a payable-on-death account, for example, in which each beneficiary is insured up to $250,000) or splitting it up among various FDIC-insured institutions. For more detailed information and online guides, go to the FDIC website (www.fdic.gov). You can request free copies of FDIC pamphlets by calling 877-275-3342. To see if your bank or credit union accounts are insured, check FDIC's website or call 877-ASK-FDIC.
Consider depositing your earnings (up to $5,500 in 2013) into a tax-deferred Individual Retirement Account (IRA) up to age 70-1/2. If you are 50 or older, you can contribute $6,500 in 2013 or your taxable earnings for the year, whichever is less. (IRS Pub. 590)
Check out a non-traditional Roth IRA. If your annual adjusted gross income was between $112,000 and $127,000 in 2013 (between $178000 and $183,000 for a married couple), you may qualify for such an account. Taxes are not deferred, but distributions will be tax-free. (RTC § 17507.6; IRS Pub. 590)
Find out if your employer offers a tax-deferred investment savings plan, such as a 401(k). In general, employees can set aside a portion of their earnings, up to $17,500 for 2013. As part of a "catch-up" plan, you can generally put away $6,000 more if you are 50 or older.
Ask about your company's pension plan. Most pension plans include a survivor's pension. Contact your pension plan administrator. For general information, call the Department of Labor's Employee Benefits Security Administration at 866-444-EBSA (444-3272) or visit www.dol.gov/ebsa (go to pension plans). Check the Pension Benefit Guaranty Corp. website (www.pbgc.gov).
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