Law Offices of Roshni T. Desai
Long-term Planning For Orange County

Santa Ana Estate Planning & Probate Blog

What is a medical power of attorney?

If you are a California resident who feels strongly about the type and quantity of medical care you receive, you may wish to consider executing a medical power of attorney that will give someone else the power to make medical care decisions for you if and when you are unable to make them for yourself. Aging Options explains that while your appointed representative can go by a variety of names, such as your health care agent, surrogate or attorney in fact, he or she will be charged with making your medical care decisions in the event a physician determines that you do not understand the decisions you must make and/or that you cannot communicate those decisions.

It is crucial that you name someone as your health care agent who you trust implicitly and who knows and agrees with your desires regarding such health care issues as the following:

  • Which, if any, life support systems and/or life-sustaining treatments you wish
  • Which, if any, anatomical gifts you want to make
  • Whether or not you want an autopsy performed after your death
  • How you wish to have your body disposed of after your death
  • Who should have complete access to your medical records

How to play it safe when appointing a power of attorney

California residents can plan wisely for the future when they choose a power of attorney to assist with financial management. Making the decision with mental faculties intact is important, a fact that seems to favor selecting a POA before getting too old. Yet, including another person in financial decisions can be risky. What can individuals do to minimize the risk?

The American Association of Retired Persons suggests appointing two agents. Doing so, the AARP says, "spreads the responsibilities...[and] serves a checks-and-balances function, just as two accountants would manage the account of a single business." While two POAs lighten the burden for one another, they also hold each other accountable and, thus, minimize the risk that either will perform shady business deals. 

What must be included in a probate estate's final accounting?

If you are the personal representative of a California probate estate and coming to the point where you can close it and distribute its assets, you must prepare and file a final accounting before the Probate Court can actually close the estate. Per the Superior Court of Orange County, California, your final accounting must outline all the financial transactions in which the estate has been involved. The only exception is if all of the estate’s distributees sign written waivers to the accounting or written acknowledgments that they have received their respective estate shares during one or more preliminary distributions.

Accounting specifics

Help your family members avoid fighting over your possessions

It is often said that death can bring out the best or the worst in people. While you want to believe that your loved ones will honor your wishes after your death, you can never know exactly how they will react while grieving. A family member might want a special item to remember you by, or a relative who feels like he or she did not get enough in the will could possibly take matters into his or her own hands. Like most Californians, you want to preserve family harmony both while you are still alive and after you are gone.

Things could get ugly before your will is read. One of your children might make off with furniture, bags of clothing, heirlooms or other items. It is also possible someone could take cash and valuables that were meant to be divided among your relatives.

A contest of wills: the who and why

A loved one has passed, and the funeral service has given time and place for memorializing. Out-of-town family members have returned home, and the executor has begun making plans to settle the decedent's estate. California residents who have established a will might believe that is enough for all the relatives to distribute belongings without conflict following their passing. However, loved ones can - and sometimes do - contest wills. 

The Superior Court of Orange County provides information on who can contest them. First, someone holding a grudge because he or she was left out of the will "has a personal financial stake in the outcome," and thus, has "standing" for a contest. This could be a spouse or a child. It could also be children who resent they received a smaller percentage of the assets than their siblings, or those who believe their parents gave too much to local charities. Finally, the Superior Court notes, "Anyone who was treated more favorably in an earlier will" has standing to challenge the current version. 

What is a living will?

If you are a California resident who believes that estate planning should be a major part of your life, you may have heard about living wills and wondered what they are and how they differ from regular wills. Actually, as FindLaw explains, a living will is not a will at all. Whereas a regular will allows you to state who you want to receive your assets and various pieces of your property upon your death, a living will allows you to state your medical treatment preferences if you are terminally ill or suffer an injury or illness that leaves you in a permanent vegetative state.

Your living will contains instructions to your doctors and other health care providers regarding the following:

  • Medical treatments, techniques and procedures you want, even if they may hasten your death
  • Medical treatments, techniques and procedures you do not want, even if they may prolong your life
  • Your preferences regarding organ donation after you die

A living trust to simplify probate procedures

Going through probate court in California is often a complicated process involving the intents and requirements of multiple parties, such as the state, trustees and the decedent. As such, many families make every effort to simplify and accelerate these inheritance procedures before entering into court, or to avoid probate entirely. Estate planning might prove an integral part of such an attempt— a process that often involves the establishment of trusts. 

In its guide to wills and trusts, the American Bar Association recommends the use of trusts in various situations. In particular, they recommend an inter vivos trust to help trustees care for an individual while he or she is still alive. This type of trust, in correlation with other documents, might also be useful in reducing conflicts in probate over the allocation or reimbursement of resources expended on caregiving. 

What is a durable financial power of attorney?

If you are a California resident who is concerned about how your financial decisions will be made and who will make them in the event you are unable to make them yourself, you may wish to consider creating a durable financial power of attorney. As FindLaw explains, a financial power of attorney is a document you sign that grants someone else the authority to take care of your financial matters if and when you are in a position where you cannot do it yourself. This person usually is called your financial agent or your attorney-in-fact.

Examples of when a financial power of attorney could be a good answer to pressing financial questions include the following:

  • You are the victim of an accident that leaves you in a coma or otherwise unable to express your financial wishes.
  • You have a stoke that deprives you of your speech.
  • You fall and receive a brain injury that leaves you confused and unable to think clearly.
  • You simply do not want to be responsible for dealing with your own finances.

4 reasons why going through probate is good

When a person dies, the will may have to go through probate court to establish validity and proper distribution of assets. The length and cost of the process usually give it a bad name, encouraging people to avoid it.

However, probate is not always a bad option. It can be a good thing for many reasons besides obvious ones such as the lack of a will, so discuss with your attorney if probate makes sense for your estate plans.

Probating estates step by step

When a loved one dies, family members feel the weight of the loss in many ways, not the least of which is the emptiness in the home they once shared. Memories abound even months later when movers await. Estate executors oversee the process as family members decide on what to distribute, what to give away and what to sell. The process is not easy, but in California, the Law Offices of Roshni T. Desai has assisted many families in making probate proceedings more straightforward.

The Superior Court of Orange County has also attempted to clarify the process by introducing a step-by-step guide. If you find yourself in the position of executor, you will first file a petition for probate. In some cases, executors request the assistance of an experienced probate lawyer. Others who are more familiar with the process may choose to handle the proceedings themselves. You may decide which approach makes you most comfortable.