No one wants to think about what will happen when they’re gone. It’s a sensitive subject for most people, and it can be even more intrusive when kids broach the subject with their parents before they’re ready. But if your parents don’t have an estate plan in place, there’s a good chance that California courts will have to intervene should they pass away or become incapacitated. A California Estate Planning Attorney can help you navigate these uncomfortable conversations and develop your parents’ estate plan so you can avoid legal stress and financial loss in the future.
Why Estate Planning Matters
An estate plan consists of numerous documents that explain the estate holder’s wishes if they are unable to make decisions for themselves at any point regarding:
- Their finances and medical care should they become incapacitated
- Their estate and assets should they pass away
- The care of any dependents should they pass away or become incapacitated
When someone dies without legal documents to distribute their property and assets, the estate goes through a probate process.
What is Probate?
Probate is a legal process performed by the county court. The probate process aims to settle the deceased’s estate, using either their Last Will and Testament or the state’s applicable law.
There are some issues with this, depending on the probate process to settle your parents’ estate:
- You and your siblings understand your parents’ wishes better than the court, but you may not agree, or the court may deem your opinions not relevant.
- The probate process takes a long time. Property and assets could lose value during the process.
- The probate process is public. Information regarding the value of your parents’ property, assets, and holdings will be available for all to see.
- The probate process is expensive and includes both attorney fees and probate fees.
5 Documents to Ensure Your Parents Have a Legal Plan in Place
Even if you get your parents on board with setting up an estate plan for their property, assets, and savings, the estate planning process is complex. It can be challenging to navigate all the documents needed to ensure your parents’ wishes are fulfilled should the worst happen, particularly if your parents have significant wealth. While every estate is unique and may require different routes as far as legal planning goes, here are some common estate planning documents your parents should consider having in place.
Power of Attorney
Designating a power of attorney simply means the person you appoint is legally permitted to make decisions for you regarding your financial and medical affairs when you can’t make them yourself.
Powers of attorney typically step in when a person becomes incapacitated due to mental illness or medical emergency, and they can:
- Make decisions regarding your medical care
- Handle financial decisions regarding your estate and assets
- Sign documents on your behalf
Your power of attorney has the same powers as you do over the matters in your life, but only if you’re unable to do so. That’s why the process for giving someone your power of attorney should include a notarized document signed in the presence of witnesses and stored in a secure place.
Advance Healthcare Directive
Once a trusted power of attorney is designated, setting up an Advance Healthcare Directive is essential. This document details what you want your medical care and treatments to be should you become incapacitated. This document prevents all of your healthcare decisions from being squarely on one person’s shoulders.
What is a Will?
When a person passes away, the probate process will determine who gets which property and estates based on their legal relationship with you. This often includes their spouse, children, siblings, or parents, depending on which relatives are deceased. However, if the person has a Last Will and Testament, the state can understand how the deceased wanted their holdings distributed. That’s because a will is a document written and signed by the deceased and outlines who will receive which of their assets and who will gain guardianship over any dependents.
The Benefits of a Trust
So, if your parents have a will, do they need a trust? The benefits of a trust, either in place of or in addition to a will, are overwhelming.
A trust is an arrangement that allows the use of a third party—or the “trustee”—to hold onto the money or assets of the person who set up the trust—or the “trustor”—until the recipients (“beneficiaries”) named in the trust document can collect the assets.
Benefits of this arrangement include:
- Assets allocated to the trust avoid the probate process
- Assets allocated to the trust aren’t subject to creditors
- Assets can be distributed to the trust over multiple generations
Depending on the type of trust that is set up—whether it’s a revocable or irrevocable trust—there are also certain tax benefits and a certain level of control retained over the assets.
The Health Insurance Portability and Accountability Act (HIPAA) protects patients’ sensitive health information and prevents it from being disclosed to others. What this means for your parents is that should they become incapacitated, their health information will be restricted from their children, who will then struggle to make good decisions for them. While your parents’ medical power of attorney will have access to their medical information, this isn’t always the same person caring for them. Whoever the caregiver will be for your parents during their twilight years should have HIPAA authorization to understand their medical conditions and required care.
How to Talk to Your Parents About Estate Planning
It’s easy to understand why a legal plan and its respective estate planning documents are necessary for aging parents. However, this discussion is often a touchy one for people to discuss. After all, it has to do with what will happen after they’re gone, and no one wants to think about that. In addition, depending on the family dynamic, some uncomfortable and hurtful decisions need to be made. Here are some tips for how to talk to your parents about the need for an estate plan.
It’s a good idea to tell them in advance that you want to talk about their legal plan for the estate and make an appointment. This isn’t a subject that should be thrown at them over Sunday dinner.
Explain Your Intentions
Help your parents understand what could happen to their property and assets should they fail to have a legal plan. Let them know that their wishes are of the utmost importance to you, and you want to ensure they’re carried out.
Give Them Time to Consider Their Wishes
Don’t ask for answers in the moment. Allow them to mull over their wishes so they can make the decisions that make them happy. This will help avoid making difficult and expensive changes to the plan down the road.
Be Sensitive to Their Feelings
Be kind in the way you approach the subject of estate planning with your parents. These discussions can quickly turn hurtful if either party isn’t sensitive to the other’s feelings.
A California Estate Planning Attorney Can Help
Estate planning can be wildly complex, especially if significant holdings are a part of the conversation or there will be several possible beneficiaries. Let a California estate planning lawyer help your family through the process.