If you are getting ready to
go on vacation but feel uncomfortable because you have planned your vacation
better than you have planned your legal affairs then you are not alone. It’s only natural to have some concern in
case something unexpected might happen while away. Underlying this nagging concern are two
levels of reality. Why are you holding
back from getting your affairs in order?
What can and should you do before leaving?
Procrastination and apprehension
over one’s mortality are two common reasons why people indefinitely postpone
getting their affairs in order. However,
consider the following: It is far easier
to get one’s affairs in order when there is no compulsion to do so and when times
are easy as opposed to doing so under compulsion in an emergency; and, getting one’s
affairs in order gives one an immediate peace of mind to live life more fully.
What one can do varies with one’s
own circumstances and needs. Some people
only need a simple will (i.e., those with small estates under $150,000) while
most other people need a living trust to avoid probate at death and perhaps for
other reasons. That said, anyone can
write a handwritten will prior to going on vacation in order to have some peace
of mind that their estate, even if subject to probate, will nonetheless go to
their intended death beneficiaries. This
is especially true for unmarried couples who wish to leave some portion of
their estate to their partner; otherwise the probate assets will all pass to
their heirs. Using a handwritten will is
neither a desirable approach nor a long term solution. It is not as reliable and helpful as an
attorney prepared and executed will.
How is a valid handwritten
(holographic ) will executed? Unlike a regular will a holographic will is
handwritten and is not witnessed. The essential
requirements are as follows: First, the
will must show the testator’s testamentary intentions (i.e., “this is my will”). Second, the will must state the bequests
(gifts). Gifts can be stated in various
ways: Specific gifts of items of
property to named persons and/or to identifiable classes of people (e.g., my
children, my spouse); and/or percentages (that total 100%) of one’s remaining
estate allocated to specific persons and/or classes. Third, a primary and alternative executor(rix)
to administer the will should be named. Finally,
the will must be signed and dated by the testator.
Also, with retirement and
life insurance plans, it is wise to call the administrator and enquire who is
named as primary and alternative death beneficiaries. One may be surprised to learn that no alternative
beneficiary is named or that who is named is no longer appropriate. If necessary, request a change in death
beneficiary form and instructions.
Next, everyone should have
powers of attorney for incapacity planning to control financial, property and
health care decisions during the principal’s disability. Incapacity planning can be accomplished most
simply by completing California’s Uniform Statutory Power of Attorney and Advance
health care declaration forms. Explanations
for each of the individual powers listed in the power of attorney can be
obtained by going on-line and searching for “California uniform statutory
power of attorney explanation of powers”.
Is the foregoing approach to
estate planning ideal or completely sufficient?
Not usually. Laypersons using the
above approach will not typically cover all the important issues they need to
address. For example, conferring gifting
authority to transfer real and personal property to loved ones, which is often
relevant for Medi-Cal planning purposes, requires additional special
instructions to be added to the statutory power.
Before leaving on vacation, place
all legal documents in a safe location and ensure that the necessary persons
have access. Then relax and enjoy your