Estate Planning Attorney Thousand Oaks
Estate planning can be difficult, and there is no single estate plan form that fits all. Consulting with an estate planning attorney in Thousand Oaks can help you to achieve your objectives, whether you are looking to avoid taxes and legal fees or eliminate conflicts among your children.
Estate planning laws differ from state to state, so it is important to have local experts like Gray & Barba, Estate Planning Attorneys of Thousand Oaks to guide you. In California, the principle elements of an estate plan are a trust, will, durable power of attorney and advance health care directive. If you have more than $166,250.00, own real property of any value, or have young children, trust planning is particularly important. If you are unsure as to whether you need a trust as part of your estate plan, call Gray & Barba, Estate Planning Attorneys in Thousand Oaks, CA.
Estate Plan Essentials
The essential elements of typical estate plans are:
- Pour Over Will
- Power of Attorney
- Advance Health Care Directives.
A Trust gives someone the authority to follow your set of instructions detailing how you want your assets managed while you are living and in good health, if you become incapacitated, and after your death. That person is called a trustee, and typically, you are the trustee until you are incapacitated or die. If you have a trust in place, probate is not usually required on your death.
A Pour Over Will gives someone the authority to follow your set of instructions on how to manages assets that are not covered by instructions in your trust on your death. In most cases, your assets are distributed to your trust so that all assets fall under one set of instructions.
A Power of Attorney gives someone the authority to follow your list of instructions detailing how to manage assets and handle financial affairs on your incapacity that are not covered by instructions in your trust. An Individual Retirement Account (IRA) is an example of an asset that cannot be covered by instructions in your trust. Negotiating over an overcharge on your phone bill is an example of a financial affair that would not be covered by the instructions in your trust.
An Advance Health Care Directive gives someone the authority to follow your directions relating to your health and medical care after you have been incapacitated. This is a set of instructions you make while you are living and healthy that details how you wish to handle issues such as organ donation, medications that could shorten your life, or whether or not you wish to prolong life.
There are other types of wills in addition to pour over wills, including, but not limited to:
- A Simple Will is a will for a person that does not have a trust.
- A Holographic Will is one that a person writes themselves, in their own handwriting.
- The California Statutory Will is a no-cost will form provided by the California State Bar from the probate code that can be useful in some situations.
Power of Attorney
The are many types of powers of attorney, the basic idea is that a person, (called an agent or attorney in fact), is given authority over another person’s (called the principal) legal matters in the principal’s absence. A durable power of attorney is one that remains in effect if the principal becomes incapacitated. A springing power of attorney is one that only takes effect when the principal loses capacity. There is also a statutory power of attorney which is a form power of attorney created by law. The California Probate Code contains the California Uniform Statutory Form Power of Attorney. The power of attorney for health care in California is now called an Advance Health Care Directive, which used to be called a living will and a power of attorney for healthcare.
Estate Tax Issues
In 2020 each individual can pass at least $11,580,000.00 to the beneficiaries of their estate before the estate is taxed. Therefore, many families do not have to worry about estate taxation. For the ones who do, there are many ways to avoid estate taxes. The first step is often to simply make sure your tax exemption is applied to your estate if it is needed. If you are not married, this exemption will be applied on your death. If you are married and, on your death, you leave your estate to your spouse without limitations, your exemption is not automatically applied. When your spouse dies, they are only allowed to use their exemption, therefore only one of two exemptions is applied. Steps must be taken to insure both exemptions apply for married couples. Factors such as the size of your estate, and the estate tax exemption at the time of your death could drastically reduce your estate passing to your beneficiaries. Gray & Barba, Estate Planning Attorneys can guide and assist you with questions regarding estate tax on your estate.
Special Needs Trusts
“Special Needs Trust” is a term that is used in a few ways. It is most commonly used in reference to a trust held for a disabled person, or a person that is not able to properly manage their own finances, and also includes provisions that will not impair that person’s ability to qualify for and receive government assistance. An example of a special needs trust is one set up by parents of a disabled child. This allows the parents to set aside funds and give other persons the authority to care for their child throughout the child’s lifetime if they are unable to do so themselves. If a disabled person receives a windfall, like and inheritance or lawsuit judgement, they can set up a special needs trust for themselves so that they can use the trust funds to supplement rather than replace the government benefits they are entitled to.
Pre and Post Marital Property Agreements
In the state of California, when married couples own property, that property is characterized as community property or separate property by law. Couples often wish to re-characterize their property. This is done for a variety of reasons, such as fully utilizing tax benefits, to establish eligibility for government benefits, to protect assets for the children of prior marriages, or to simplify the division of assets in the event of a divorce.
Agreements made before marriage are pre-marital agreements, (commonly referred to as prenuptial agreements), and those done once a couple is married are post- marital agreements. There are many similarities between the two, however, the law regarding pre and post marital agreements are significantly different. Married persons have a fiduciary duty to each other under the law that unmarried persons do not have. Pre-marital agreements that are executed right before a wedding may be found unenforceable. It is important to work with attorneys on all pre- and post-marital agreements because agreements drafted without attorneys are often unenforceable in court. An important aspect of estate planning for a couple, is the characterization of assets, and Gray & Barba, Estate Planning Attorneys is here to help.