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What is a Living Will?

General Legal Information About Estate Planning

Often times, I get the question “Do I need a living will?”. mIn the state of California, there is no such thing as a “Living Will”.  When this question is asked, the individual is usually wondering about who can make medical decisions for them if they are unable to make a medical decision because of an injury, accident or long term illness.  Oftentimes the question arises when the discussion is about a loved one who is suffering from an Alzheimer’s type dementia.

In California we do not have anything called a “Living Will”.  There may be some confusion between Advanced Healthcare Directives and a Living Trust.  A Living Trust, also referred to as a Family Trust is a part of many overall estate plans. A Family Trust legal document that is used to manage some of a person’s assets during their lifetime and to distribute those assets after they pass away.  A Family Trust is one of the most common methods for Estate Planning.

In California, generally a complete Estate Plan, it would consist of:

  • A Will – Every person needs their own Will.  A Will is a document that nominates an executor and explains what you want done with your estate after you pass away.
  • A Trust (generally) The Trust would hold title to major assets (Assets with title, such as real property, brokerage accounts, bank accounts and business interests.)
  • A Durable Power of Attorney for Healthcare – This would provide a method for a loved one to make medical decisions for you when you are unable to make the decision.
  • Durable Power of Attorney for Business Affairs – This would provide a method for a loved one to manage your financial affairs when you are unable to manage them for yourself.

The Durable Power of Attorney for Business Affairs and the Durable Power of Attorney for Healthcare would provide a way for the person(s) of your choice to make decisions in regard to all finances and healthcare, while you are living, but unable to make decisions for yourself.  A Will nominates your executor and provides direction for the distribution of your Estate upon your death. The Trust would be managing your property – both while you’re living and after you’ve passed away.  The trust will only control the assets that are vested in the name of the trust.  Every person needs a Will.  You and your attorney can decide whether or not you need a Will and a Trust.

Making the decision to have a Trust, Will, or Durable Power of Attorney is an important step in planning the future for you and your family.  Everyone is different and has different needs and desires.  Some people desire for their estate to pass to their family, loved ones a charity and even a beloved pet. It is up to each person to decide what they desire to do with their estate after they pass away.

We have found that many people will go to a seminar on estate planning and the Attorney, paralegal or other planner will talk the attendees into creating “Cookie Cutter” trust.   Usually the trust that is created is exactly the same for everyone in attendance.  But people are different and their circumstances are different.  Married, Single, Divorced, many children, no children, Regardless of your circumstances, age, education or stage in life your wishes can only be properly carried out if your write them down.  Whether you have a Will or a trust, you should do something to provide clear direction to your loved ones regarding your estate.  I would strongly recommend that everyone should seek the advice of an attorney that understands the variety of different estate planning documents and can create an estate plan that meets your specific needs.

Disclaimer: This post includes owned imagery and general legal information. This post does not contain legal advice.