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FAQ: What Documents Should I Include in My Estate Planning?

Many people avoid estate planning simply because they do not fully understand the process. They feel uncomfortable speaking to an attorney because they fear they will ask silly questions, or they think they should know more about the process than they actually do. This is why it is so very important to find a California estate planning attorney who can comprehensively analyze your estate, educating you on your choices. Whether you have a very complex estate or a much simpler estate, attorney Mark Gullotta will ensure you receive an estate plan which is right for youyour level of assets, and your loved ones.

Mark understands your apprehensions regarding an estate plan and will lead you out of your comfort zone through his proactive estate planning approach. If you desire a predictable estate planning process which minimizes surprises while achieving the desired protection for your loved ones, and an estate planning attorney who keeps you informed during the entire process, Mark Gullotta is the California estate planning attorney for you. Mark will ensure you have a flexible plan which will grow with you and your family, helping to simplify the process and make it easy for you to understand.

Should I Have a Will, a Trust, or Both in My Estate Plan?

In many cases, you could benefit from both a will and a trust. You can place your assets in your revocable living trust, allowing them to go to your beneficiaries in a relatively seamless manner. If you have minor children, you will need a will because a trust cannot nominate a guardian for them. A trust avoids probate, keeping your assets relatively private since a will can be accessed by any interested party.

A will must be probated, which generally takes time and costs money. Since the trust passes outside of probate, the court is not required to oversee the trust administration process. A trust takes effect immediately after you create and fund it, while a will only takes effect after your death. A will covers property which is only in your name when you die but does not cover property held in joint tenancy or in a trust. A trust covers only property you transferred to the trust. Wills and trusts each have their pros and cons; your California estate planning attorney can tell you how best to use a will and/or trust in your estate plan.

Do I Need a Durable Power of Attorney?

Depending on your exact situation, you may or may not need a Durable Power of Attorney. In fact, it is never too early to consider how you would want your financial affairs to be managed if you were incapacitated and unable to exercise control over your finances. You might choose to grant a Durable Power of Attorney to your spouse, sibling, parent, adult child, or close friend—a person you would trust implicitly to act wisely, in your best interests. This person would then have the legal right to make the same decisions you would make if you were able.

Planning for the future with a Durable Power of Attorney could minimize the complications which could arise were you to become incapacitated. If your Power of Attorney is not durable, a court might need to appoint someone to act on your behalf—a time-consuming, complex, and expensive process. You have the right to revoke or change your agent’s authority given in the Durable Power of Attorney at any time, so long as you are not mentally incapacitated.


What About a Health Care Power of Attorney or Advance Directive?

In the state of California, a health care power of attorney (in other states these are called a “Living Will”) is generally known as an Advance Health Care Directive, which allows you to appoint a health care agent who will have the legal authority to make health care decisions for you if you are no longer able to speak for yourself. The Advance Health Care Directive lets you have written instructions for your future health care should a situation arise where you were incapacitated. You should choose your health care agent carefully—most people choose a trusted family member, friend, spouse, or partner. Whomever you choose should be aware of your personal beliefs and values.

When possible, you should choose a person who lives in your area, in case they are required to direct your medical treatment for an extended length of time. You cannot choose your supervising health care provider or the operator of a nursing home where you reside as your health care agent. Your agent cannot be an employee of any residential, community, or health care facility where you receive care—unless the person is also a relative, co-worker, or spouse. It is always a good idea to choose at least one alternate person to act as your health care agent in the event your first choice is unable or unwilling to make those health care decisions on your behalf.


How Do I Make Provisions for My Digital Assets?

In today’s high-tech world, it is important that you make provisions for your digital assets. Whether you choose to allow your “regular” executor to also handle your digital assets, or you name a separate person to do so, the person designated to handle digital assets is called a digital executor, or digital fiduciary. Digital assets include hardware (computers, external hard drives, flash drives, tablets, phones, e-readers, digital cameras, and digital musical player).

Any of these items which have monetary value aside from the stored information may also be a part of the probate estate. Included in digital assets are both data with monetary value and data with no monetary value. Domain names, e-commerce accounts (online stores you operate, eBay, Etsy, etc.), income-generating websites, digital intellectual properties (patents, trademarks, copyrights), online payment systems like PayPal, airline and hotel programs with accumulated points, and any digital accounts related to your business are all considered data with monetary value.

Personal photographs, documents, music (whether stored on your computer, external hard drive or the Cloud), email accounts social media accounts, gaming accounts, blogs, utility company accounts, online banking accounts, and shopping accounts are also considered digital assets. Take stock of all your digital assets, making a comprehensive list, and closing any old or unused accounts. Update all your information, then include a digital asset provision in your will, and in your power of attorney, which will refer to a separate document listing your digital assets, as well as passwords and login information.

Where Should I Keep My Estate Plan?

It is important your family knows where to find your estate plan, as well as life insurance policies, information on pensions or retirement accounts, bank account information, any divorce, marriage, birth or adoption records, real estate deeds, and stocks, bonds, and mutual funds. Your estate plan should be kept in a secure place, usually in a safe in your home, or in a bank in a jointly-owned safe deposit box.

Married couples should each know the location of one another’s estate plan, and unmarried people should keep the original estate plan with a family member, the executor of your will, or your estate planning attorney—or all three. Your physician should have a copy of your Advance Health Care Directive or Healthcare Power of Attorney, and your estate planning attorney should have copies of everything in your estate plan.


How Mark Gullotta Can Help Ensure Your Estate Plan Suits Your Life and Your Wishes

In addition to the documents listed above, there are other estate plan documents that might be necessary for your specific circumstances. Your estate planning attorney might recommend you have a Pour-Over Will, beneficiary forms, and a list of all your important documents. Mark Gullotta has been an estate planning attorney in the San Mateo County area for seventeen years and offers quick, 15-minute assessments. Contact the Law Office of Mark Gullotta today for the help you need in planning your estate.

DISCLAIMER: The information provided in this document is not legal advice. No attorney-client relationship is created as a result of this presentation. The content is intended to be a general overview of the subject matter covered and is educational and informational only.