Questions About Beneficiaries, Powers of Attorney, and More
Probate, Trusts & Estate Planning Representation
Over the years, I, Attorney James A. Zakasky, have noticed that many of my clients have similar concerns and questions. In fact, many of these questions are the main discussion of their free case evaluations. To better serve my clients, I have collected these commonly asked questions into a list and provided the answers below. I hope this page sheds some light on your legal matter.
When someone is deemed to be incapacitated because of an accident, mental health and or illness and they do not have a Durable Power of Attorney appointing someone to take care of their property (Home, Bank Accounts, Retirement Accounts) the State of California has a legal process that decides who will take of your property and how it will be disposed. That process is called a Conservatorship. To ensure that this does not happen to you make sure that you have a Durable Power of Attorney filed and ready so that you control your property even when you do not have the capacity
3. Organization and all decisions that you want made with your life completed.
I have more than a decade of legal experience in handling even the most complex of probate and estate planning cases. At my firm, I provide one-on-one attention so you will never feel overwhelmed or in the dark regarding the status of your case. My genuine interest and compassion for my clients is evident in everything that I do. You can trust me to utilize all my resources to protect your rights, interests, and assets, no matter what happens. We are constantly updating all of our documents to ensure that your trust, instructions to financial institutions and powers of attorney are in compliance with legal standards and that your assets will be transfered to the people and charity orginizations that you designate. We want to make sure that your beneficiaries are not burdened with a complicated legal process and that they do not have to hire additional lawyers or have to be at the mercy of the courts.
AHCD – Instructs the Hospital where you are being treated on how you want to be treated and cared for. Gives the power to an Agent to be your representitive and enforce your instructions legally. Without this document someone else will decide how you are treated and whether you will be removed from life support or not — Please see case of Terry Schiavo.
An Advanced Health Care Directive:
- Designates an Agent that will enforce your rights while you’re under the care of a physician and are considered disabled and cannot communicate your treatment to your doctor or attending physician. Always choose a person that lives close by and is able to be at the hospital if you have an emergency and make sure to tell them. Your Life Cards that you carry should also be updated with your agent’s name and contact information and give access to health care professionals to your actual Advanced Health Care Directive.
- Duration – When does the power of the agent go into effect and when does it expire. The power usually goes into effect at the signing of the document and expires after the death of the individual. The directive from you is in effect whether your agent is there or not because the document itself instructs the attending professionals in how you wish to be treated. You really do not put the burden on your Agent they just do what you ask of them and make sure that it is carried out.
- Care Instructions – this ranges from the type and facility of care that you will need such as assisted living or psychiatric care if you develop Alzheimer’s or some other disability. If you become unresponsive and you are on life support when is it okay to take you off and not resuscitate. This all has to do with the very famous Terry Shivo case where two sets of family legally battled over pulling the plug on life support. Again the clearer you can be then the easier it will be to just follow the instructions and not put the burden on to your agent.
- Medical Record Release information – Gives the power to your agent to release confidential information to care givers that will help them with your care.
- Pain Relief – Gives the power or non-power to administer pain relief so that you can be as comfortable as possible when going through a crisis.
- Grant Releases – Agent can sign waiver or release of liability so that medical personnel can perform duties while under their care.
- HIPAA – Representative – Agent has authorization to release all HIPAA or confidential medical information to medical professionals in the case of emergency care.
- Court Proceedings – If any court proceedings are to be taken while you are under care your Agent can instruct the court on your wishes and may act in your place. Your agent may be appointed guardian if necessary.
- Agent has power to instruct Third Parties on Health issues, Agent cannot be found to be liable and the Agent may be reimbursed for any expenses that are incurred for being Agent.
What is HIPAA and why is it Important?
HIPAA stands for the Health Insurance Portability and Authorization Act. It can be broken down into two categories, Protection and Portability. Portability means that if you have insurance through your employer and you lose your job it gives you the right to transfer that insurance and keep it. Protection means that your Protected Health Information which is any medical record or Medical payment information can only be disclosed by either your Authorization or your agents.
Why is it Important?
This becomes very important when you are hospitalized and care givers need information from any number of doctors and care givers that you have seen such as Dentists, Psychologists, Psychiatrists, specialists, chiropractors, and pharmacists. To make sure that this valuable information is used and does not violate any protected health information a simple HIPAA Authorization Form can be used to grant this release.
What is a HIPAA Authorization Form:
- Designates trusted individual to receive your protected health information for emergency situations. The person picked should probably be your Agent of your Advanced Healthcare Directive and subsequent successors.
- Designates all healthcare providers such as physicians, podiatrists, chiropractors, or osteopaths), psychiatrists, psychologists, dentists, therapists, nurses, hospitals, clinics, pharmacies, laboratories, ambulance services, assisted living facilities, residential care facilities, bed and board facilities, nursing homes, medical insurance companies or any other health care providers or affiliates to use, release and disclose any of my protected medical information.
- Termination – the form will only terminate by written revocation by you.
- 3rd Party Liability release – Any entity acting upon this form shall not be held liable.
HIPAA Authorization Form should be part of your complete Estate Plan. The form should also be part of your Spouses protected documents as well as any children. The documents should be stored electronically with a corresponding Emergency Health Card so that First Responders can have access to vital Protected Health Information.
What is a Durable Power of Attorney and Who Needs One?
A durable power of Attorney is a legal document that you sign that gives power to an Agent (someone you trust to act in your best interest, spouse or independent fiduciary) to take action for you because you can’t because you are incapacitated from a medical emergency. It’s “durable” because it lasts even though you have become incapacitated.
Why would you need it?
If you are involved in medical emergency or become suddenly ill someone will still need to pay the bills, make deposits, handle legal and insurance claims, and handle benefits paperwork.
If you don’t have it someone will have to go to court and ask a judge to act as Conservator or as a Guardian. This is all very public and could be potentially embarrassing. If there is some type of conflict about who is being appointed, lawyers are hired, money is spent and there are even more delays and stress.
Who Needs It?
Anyone who owns property, has a bank account, has health insurance, own securities, own a business, have family, etc.
Scott is a single man who owns a Santa Rosa, California Real Estate Company and has a car accident on his way to work. He goes into a coma. He owns several properties and financial accounts. In order to pay the bills, his girlfriend of two years will have to get a court order to pay the mortgage and mange his business. Scott’s sister never liked the girlfriend and opposes the order.
John and Sue have been married for 25 years and own a nice Santa Rosa home. Sue is diagnosed with Alzheimer’s and needs immediate care in a facility. In order to pay for the long term care that Sue desperately needs John will need to sell the house. Sue because of her condition can’t sign the paperwork. John will have to go to court to sell the house.
How do you use it?
The document once signed is in effect and can be used at any financial institution. You want to make sure that the document is signed prior to the incapacity of the individual. You also want to make sure that the Agent (someone you trust to act in your best interest, spouse or independent fiduciary) has access to the document. The Northern California Estate Planning Attorney that you use should have electronic storage available so that your Agent can access the document when needed. The North Bay Estate Planning Attorney that you use should also have a system alerting his firm so that he can help you when you need it the most.
When I first started to look at getting a guardian for my son, I found that it was a lot tougher decision than I first thought. My wife and I do not have any family that lives around us. The family that are close are very old and the thought that they would take care of my son was more comfortable but not very stable.
Step 1 Make a list. I started with friends because I want my son to be raised in this community. I can only imagine what it would be like if I lost both my parents and having to leave my home would be too much. I would also like him to be raised in proximity to the house by two very stable people that have the same life as we do and really know our son. I also want him to go to the same school that keeps him connected and the high school that we talked about him going to.
Step 2 Talk to the potential guardians and find out what their willingness to serve as guardian is.
Step 3 Get a declaration of guardian signed and in writing have specific instructions such as “will attend Cardinal Newman High School, will spend summers with Uncle in Southern California and will go to 4-year university in Boston, etc.
You should consider these areas when thinking about your specific plan:
- Medical Needs.
- Family relationships.
- Financial needs
- Spiritual and Community ties.
This simple form can be used in naming a guardian.
Step 4 Get a plan. Now that you have a guardian in place finish the plan. A good estate plan should include:
- Advanced Health Care Directive.
- Power of attorney for assets.
- Revocable Living Trust.
- Contact that will make sure the Plan is executed (Your Estate Planning Attorney).
What is a Pour Over Will?
A Pour Over Will is a Will that directs all of your Assets to be distributed at your death according to your Trust. It’s a stop gap provision that if any asset that you attained like a home in Santa Rosa, California was not inside your trust and needed to go through the court system then that piece of real estate would be given to the beneficiary you directed in your trust. The home would not have to go through probate saving you the cost and exposure of a public court process in Sonoma County Superior Court.
For Example, Jim executes a revocable living trust that awards all of his Santa Rosa Home at his death to his wife as sole beneficiary. Two years later he buys a hardware store including the building. Jim does not update his trust to reflect the ownership of the business. Jim dies and the trust gets distributed except for the business. At the Administration of the Trust, Jim’s Pour Over Will is invoked and the hardware store is distributed via the trust and Jim’s wife as sole beneficiary is awarded the hardware store.
A Pour Over Will is a key part of a comprehensive Estate Plan to insure that your family is taken care of in the event of Death or Disability. The will can name guardians for your children and deal with any change in life circumstances that have come about after your Trust has been executed.
Sonoma County Will Starter Kit only $500.00
Wills can be an excellent choice for families that are just starting out. Our law office offers a Will starter kit that comes with an Advanced Health Care Directive and Power of Attorney. This is an excellent choice for Families with young minor children and limited assets. The Will Starter Kit is $500.00 and is an excellent value.
How Does a Trust get Funded?
In order for your trust to be an executable document and a trust in itself the trust must be funded. That means that the assets name must be changed from the current name to the name of the trust. For Example, if you own a home, you will want a new deed drawn up changing the name from John and Della Smith in Joint Tenancy to the Smith Family Trust. The Deed would then be recorded with the Sonoma County Recorder’s Office. Chain of Title will then be updated and the property will pass based on the provisions of your trust.
Why is it Important?
If you do not fund your trust your trust could be ineffective and someone else could inherit your property. Your case will go to court and end up costing your beneficiaries time and money.
Make sure you work with an Attorney in Santa Rosa, California that not only writes solid trusts but also demands to fund your trust and insures an easy non-public transition for your loved ones.
Below is a recent case that showcases the result of an unfunded trust.
Carne v. Worthington
Filed April 13, 2016, Fourth District, Div. One Cite as D067756
Decedent executed a revocable trust in 1985 (the “1985 Trust”), and real property located on Via Regla was transferred to the 1985 Trust. Decedent executed an irrevocable trust in 2009 (the “2009 Trust”) which stated, “I transfer to my Trustee the property listed in Schedule A, attached to this agreement.” The sole asset listed on Schedule A was the Via Regla property. Decedent’s daughter filed a petition to confirm the validity of the 2009 Trust and that the Via Regla property was an asset of the 2009 Trust. The trial court found the transfer of Via Regla to the 2009 Trust was not valid because decedent was required to transfer title to the Via Regla property by a deed, and because decedent did not personally own the property at the time of the transfer.
The appellate court reversed. The language quoted above in the 2009 Trust was sufficient to convey the property to the 2009 Trust, and decedent was not required to execute a deed. While decedent did not own the property individually at the time of the transfer, his signature on the 2009 Trust was sufficient to convey title from the 1985 Trust to the 2009 Trust because the 1985 Trust was a revocable inter vivos trust, he owned the property as sole trustee of the 1985 Trust, and he had the power to transfer real property owned by the 1985 Trust.
What is DocuBank and why do I need it?
Keeping your documents secure, safe and accessible in Northern California
DocuBank is an accessible document storage system that allows you to review and retain all your important document information. It has an encryption software package and a login to insure that all your most important documents are secure and accessible when you need them the most. DocuBank allows users the ability to review information and make it easier to access vital information when you need it most. DocuBank also allows users to add other documents to the client’s electronic safe such as Birth Certificates, Tax Returns, Deeds, Agreements, Financial Statements, even family Photo’s.
Why Do I need DocuBank?
It is not surprising that many Wills and Trusts are lost or thrown away. I have many clients that had trusts prepared but were subsequently thrown away or misplaced and their loved one’s cannot find the paperwork. If a will or trust is lost or simply cannot be found a Probate will need to be filed and the property will be distributed by the laws of California Intestacy. The Probate process is lengthy, costly and very public and probably the reason the Estate Plan was created in the first place.
What Documents Go in to the Safe?
Revocable Living Trust
Power of Attorney for Managed Assets
Marriage and Birth Certificate
Financial Statement from Retirement Plans
“When my husband passed I was able to access all of our online accounts, get bills paid and transfer accounts. This was a tremendous relief that I didn’t have to search through old boxes and closets to find out where everything was.”
DocuBank works in conjunction with a hardcopy version of all of your Estate Planning documents that will be delivered to you at the signing meeting at our offices in Santa Rosa, California.
Your Estate Plan in Action
Emergency Cards – Helping First Responders in the case of an Emergency in Santa Rosa, California
An Advanced Health Care Directive or HIPPA Authorization is only good if it is implemented at the time it is most needed, when a first responder provides care. When an Ambulance arrives, when the fire department respond to a call or when the Highway Patrol are called how will you inform these key people of your medical information and status?
The DocuBank Emergency Card
The DocuBank Emergency Card give first responders all the key links to your:
Advanced Health Care Directive
HIPPA Authorization Form
With access to this information First Responders will be able to inform your Health Care Agent of your situation so that they can be on hand to insure that you are being treated as you have requested in your Advanced Health Care Directive.
With access to this information First Responders will be able to access all information necessary from all medical providers to insure the highest standard of care for you at the time of the emergency.
With access to this information all medical facilities that you might be put into such as assisted living have to be approved by your Health Care Agent.
The Law Office of James A. Zakasky provides DocuBank for all its clients so that you not only have great legal documents but you have a system and a plan that works when you need it most.
Along with the DocuBank Emergency Cards, Docubank also provides the electronic SAFE. SAFE is a secured encrypted storage area that safeguards all of your Estate Planning Documents and any other personal files such as Financial Statements, Tax Returns or even Family Photos.
How can I protect my property from taxes, lawsuits and creditors in Sonoma County CA?
Asset protection is the formal process of protecting your assets from taxes, lawsuits and creditors.
Asset protection takes many forms. Insurance, such as an umbrella policy, will protect you from lawsuits where your car insurance may fall short. If you are sued for over one million dollars and are underinsured, the creditor could take your home, accounts and securities to satisfy the judgment against you. The umbrella policy would kick in and potect your assets by satisfying the judgment with insurance proceeds.
Another form of Asset protection is putting your asets in Trust. If your Assets are in a Trust then it becomes much more difficult for a creditor to reach and liquidate those assets to satisfy a judgment. If you have a trust your assets are also protected from certain forms of taxes and fees that may be extracted from your spouse or child.
A form of Asset Protection Trust is an IRA Trust. IRA Trusts can protect assets from creditors that will pray on your children. The first of which is the federal government. When you own an IRA and transfer it to your children at death, the child on average spends that IRA within 18 months of receiving it.
It would be great if you knew that these assets were protected from the 42% tax that is imposed on these securities when they are liquidated and used as income. That’s right the value of your IRA is only the value it receives upon liquidation. That means that a million dollar IRA is only worth about 580K!!!
It would be great if you knew that your IRA Assets could only be used for your childs education or their child’s education and it could not be taken by your child’s spouse in a divorce proceeding. The IRA Trust is an excellent tool that protects Assets from an array of creditors and passes wealth on to the next generation.
To find out more about Asset Protection and IRA Trusts call the Office of James A. Zakasky, Santa Rosa CA Estate Planning Attorney at 707-595-1148.
How much does a Trust Cost?
A living Trust will probably run you anywhere from 1K to 5K depending on the complexity of your Estate. For the average person in Sonoma County that owns their home, has a modest bank account and retirement plan the cost would be $2000.00.
At our office, we rarely sell a standalone Living Trust. For $2000.00 you would receive a comprehensive Estate Plan that includes:
A Revocable Living Trust with all contingency clauses for special needs, guardian nomination, spendthrift clause and contest provisions.
Living Will – Advanced Healthcare Directive, your instructions to be carried out if you are treated in case of a medical emergency, appointment of an Agent and release of protected information.
Will – just in case something falls outside your estate this catch all device brings it back in while still providing the protection your beneficiaries deserve.
Certificate of Trust – The document you will use to fund and preserve your rights over Assets in the Trust.
Power of Attorney – A trusted agent (spouse, child, sibling or friend) is appointed in case you are incapacitated to pay bills and manage your assets for you.
Docubank – Cloud based storage that holds critical information including your Advanced Healthcare Directive to be used with First Responders when an emergency strikes.
It is true there are devices that allow you to avoid probate and you may be okay if just one spouse dies. But, the bottom line is if you have a probate and have to pay the Attorneys fees they will run anywhere from 20K to 100K. Not only are there fees but when a probate is opened there is always the chance that someone in the Family will contest the probate. When you do not have any documents like a Trust, beneficiaries can and will hire an Attorney that will tie up assets for years not months and that whole time your estate may be paying the Cost.
A Living Trust should do this:
Promote Family Harmony.
Provide Asset Protection from divorce, creditors and Taxes.
Be a resource for beneficiaries not a burden.
Provide a legacy from one generation to the next.
Your Estate Planning Attorney should be a constant resource for you, your family and your business. This is an important relationship where your Attorney keeps you updated on the law and you keep him updated on your situation.
There are over 160,000 Attorneys in the State of California alone. With so many to choose from How Do You Pick the Right One?
1. Look up the Attorney on the State Bar of California website at:
There you can find out if the person is licensed and if there has been any discplinary actions against the Attorney.
2. Make sure the attorney specializes in the practice that you need his help in. If you need an Estate Planning Attorney make sure that this is the area where their expertise is in.
3. Make sure the Attorney calls you back within an 8 hour period. Also make sure that the Attorney himself has some type of direct communication with you.
Probate is the legal process of settling a deceased person’s affairs after their debts. It is notorious for being costly and lengthy, often tying up estates for months. The probate process can be emotionally and financially draining for surviving family members. Fortunately, the probate process can be avoided by establishing a trust. Learn more about how this works by contacting me.