Estate Planning

Revocable Living Trusts

What Is A Revocable Living Trust?

This type of Trust is sometimes called a revocable inter vivos Trust. Inter vivos means that it is created while you are living. Revocable means that it can be revoked, changed or discontinued. This document creates the entity to which you transfer ownership of your assets. It also contains your instructions for managing your assets during your lifetime and for their distribution upon your incapacity or death.

Why A Revocable Living Trust?

Your Revocable Living Trust is a method of avoiding the probate process and minimizing estate taxes. If your assets are owned by your Trust, no court is involved in the transfer of your assets upon your death or the death of your spouse. Therefore, no newspaper notices or letters to heirs are required, no records become public and no statutory waiting periods apply. As soon as any tax matters are settled, your assets may immediately be distributed to your beneficiaries.

Signing Your Revocable Living Trust

For your Revocable Living Trust to be a binding, legal document, you must sign and date it in the presence of a notary public where indicated at the end of the Revocable Living Trust document.

Last Will and Testament (Pour-Over Will)

What Is A Pour-Over Will?

A short will stating that any assets left out of your Revocable Living Trust will become part of (poured over into) your Revocable Living Trust upon your death. These assets will first go through the probate process in order to be transferred into the Trust. Then assets will then be distributed as outlined in the Trust. Guardians for minor children are also identified in the wills as are prior marriages and other children.

Why A Pour-Over Will?

Some people are not very diligent in funding their Trust. Your pour-over will makes certain unfunded assets are distributed according to your wishes outlined in your Trust. Your goal, however, is to avoid probate and the "pour-over" will should not be relied upon to transfer assets to your Trust.

Signing This Document

In addition to signing your Last Will and Testament, you must initial every page. Your signature requires a minimum of two "disinterested" witnesses present when signing your will.

Durable Power of Attorney

What Is A Durable Power Of Attorney?

If you are incapacitated, this document gives another person full legal authority to sign your name on your behalf and manage your finances for all assets not owned by your Trust. (Your Revocable Living Trust gives your Successor Trustee or surviving spouse Financial Powers of Attorney for assets owned by the Trust.)

Why A Durable Power Of Attorney?

For tax reasons you should own certain assets outside your Revocable Living Trust; e.g., IRA's, annuities, pension plans. Since they are not owned by your Trust, your Successor Trustee has no authority to deal with them. The Durable Power of Attorney names an Attorney-in-Fact to make decisions regarding such assets.

Signing This Document

In order for your Durable Power of Attorney to be a binding, legal document, you must sign and date it in the presence of a notary public.

Advance Health Care Directive

Health Care Power of Attorney and Directive to Physicians (Living Will)

What Is A Health Care Power Of Attorney?

This document gives someone else the authority to make health care decisions for you in the event you are unable to make them for yourself. The Health Care Power of Attorney applies in any situation in which you are unable to make health care decisions for yourself, not just when you are terminally ill. The Health Care Power of Attorney you created only becomes effective upon your incapacity. It gives broad powers of health care decisions to whomever you have named as your Attorney-in-fact or "Healthcare Agent".

Why A Health Care Power Of Attorney?

No one has the legal authority to act for a family member if that individual is unconscious or incompetent unless they have Power of Attorney to do so. Even parents of adult children cannot authorize emergency treatment for them without a Power of Attorney. If no one has been appointed as your healthcare agent, it is up to the courts to make decisions on your behalf.

What Is A Directive To Physicians?

This document is also known as a Living Will. It lets you state your wishes regarding the provision, withholding or withdrawal of treatment to keep you alive, as well as the provision of pain relief. It establishes your desires regarding the use of life support systems as well as artificial nutrition and hydration.

Why A Directive To Physicians?

Modern technology has advanced to the point that it is possible to keep an individual alive for an indefinite period of time even though there is little, if any, chance of recovery. If you fail to make your wishes known ahead of time, you could lose your "right to die" privilege. You must make the decision to sign a Directive to Physicians before the onset of a terminal condition and while you are fully competent and not under mental duress.

Signing This Document

You must sign and date your health care documents in the presence of a notary public or two qualified witnesses. In California your Health Care Power of Attorney and your Directive to Physician are combined into one document - Advance Health Care Directive.

Contact Info

Law Office of Lorna J. Drope
Santa Clara County
1550 The Alameda
Suite 206

San Jose, CA 95126

Phone: (408) 852-7005
Fax: (408) 899-4485