Frequently Asked Questions about Estate Planning and Family Law

A durable power of attorney lets you appoint a trusted person to make healthcare and financial decisions if you're unable to. Without this, your family may face a court process called guardianship and conservatorship, where a judge decides who will make decisions on your behalf under court supervision.

A will is a document that directs the distribution of assets after death but doesn’t avoid probate. It only takes effect once filed with the Probate Court after the willmaker's death. A will is essential for parents of minors, as it allows them to designate a guardian. Testamentary trusts within a will can help manage assets for heirs and potentially reduce estate taxes.

Divorce mediation is an out-of-court process where a neutral attorney helps both parties reach a settlement. It is typically faster, less adversarial, and more affordable than litigation, allowing parents to decide on child custody themselves rather than leaving it to a judge. However, each spouse may still want their own lawyer for individual advice. If full agreement isn’t reached in mediation, litigation may still be necessary.

Probate is a court process for managing decisions for those unable to do so themselves, including minors, incapacitated adults, and those who die without plans to avoid it. Probate can be costly, time-consuming, and public, so many opt to avoid it to save money, reduce legal complications, and maintain privacy.

If someone dies without a will, their assets are distributed under state intestacy laws, typically to biological or legally adopted relatives. Stepchildren generally do not inherit unless specifically included in a will or trust, or if adopted by the stepparent.

Some exceptions exist. For example, in California, stepchildren may inherit if:

1. The relationship began during the stepchild’s minority and continued into adulthood.

2. Clear evidence shows the stepparent would have adopted the stepchild but was unable to. (California Probate Code §6454)

Many people consider pets as family, so ensuring their care in your estate plan is essential. Since pets are legally considered property, they cannot be direct beneficiaries of a will. Leaving money for their care in a will can lead to misuse, delays in probate, or lack of legal obligation for the caregiver. A better option is creating a pet trust, which allows you to set legally binding terms for your pet's care, avoids probate, and provides for your pet in case of your death or incapacity. A trustee ensures the funds are used as intended, offering peace of mind that your beloved companion will be cared for properly.

An estate plan typically includes four key documents: a trust, a will, a Durable Power of Attorney (DPA) for financial management, and an Advance Health Care Directive (AHCD). While a will and trust focus on managing assets after death, the DPA and AHCD address decisions during life. Everyone over 18 should consider having these documents to prepare for the unexpected.

A revocable living trust is an agreement involving three roles: the trust-maker, trustee (manager), and beneficiaries. For instance, a couple can serve as all three, managing their assets within the trust and enjoying its benefits. Backup trustees can take over if the couple becomes incapacitated or dies, ensuring assets are managed and distributed to heirs per the trust’s terms. This setup may help avoid court proceedings and minimize estate taxes with proper planning.