Advice to couples with no children. You have two main tasks.
One is to decide what will happen to your property after you die. The other,
arguably more important—and trickier—task is to specify who will handle your
medical and financial affairs if you’re incapacitated.
Without wills or trusts, state law dictates who inherits
your assets—generally, your spouse if you have no children, then your spouse’s
relatives after he or she dies (or the state if there are no living relatives).
If you don’t want to risk disinheriting your relatives, or if you’d like to
leave something to friends or charity, you need a plan. The simplest and most
common approach is for you and your spouse to execute “sweetheart” wills,
leaving everything to each other and outlining who gets what after you both die.
Another approach is to transfer your assets, during life or
at death, to a joint revocable living trust, which would spell out how the
assets are to be distributed. This helps avoid probate, which in some states,
such as California, is expensive and time-consuming. Still, the surviving
spouse can change his or her will (or the couple’s joint revocable living
trust), so the estate’s ultimate disposition is really determined by whoever
lives longer.
If you want more control over where your assets end up, you
can create irrevocable trusts, either in your wills or in separate trust
documents. On the first spouse’s death, that person’s share can be used for the
surviving spouse’s benefit, but the document can “lock in” the beneficiaries
who will inherit at the second death.
You also should sign general powers-of-attorney and
health-care documents empowering someone to make financial and medical decisions—including
end-of-life decisions—on your behalf if you become incapacitated. Spouses can appoint each other, but having a
“Plan B” is recommended, which involves naming another (preferably younger)
person to serve simultaneously or in succession.
In California there are professional fiduciaries that can be
hired as agents under powers of attorney. Some geriatric care
managers will agree to serve as health-care agents. Other possible
candidates are trusted nieces, nephews, friends, neighbors, clergy, siblings
and cousins.
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