A crucial step in establishing a revocable living trust is to ensure that the appropriate assets are re-titled in the name of the trust. Failure to do so may require the Executor or Personal Representative of your estate to initiate a probate proceeding to distribute your remaining assets.

The current Covid-19 pandemic highlights yet another reason to avoid the probate process altogether. The current crisis has forced many courts across the US to close or severely limit their operations, making it nearly impossible to go through the probate process.

If a probate proceeding has not yet been started, your beneficiaries or heirs may need to delay the already time-consuming probate process even longer. If a probate proceeding has already started, but the Executor or Personal Representative in charge of administering your estate becomes incapacitated or is no longer able to act, there may be a significant delay before a successor can be appointed to complete the administration of your estate.

Key takeaways:

1. Utilize a revocable living trust to transfer assets to your beneficiaries.

2. Ensure that your assets are properly re-titled in the name of your trust.

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When Covid-19 symptoms escalate to the point of requiring a patient to be put on a ventilator, they are typically placed into a medically induced coma, which results in a period of incapacity rendering the patient incapable of making any decisions.

People often prepare for this by executing a durable power of attorney designating another person as agent to make financial decisions while they are incapacitated. (Similarly, Advance Health Care Directives are used to name agents to make medical decisions.)

Although the durable power of attorney is typically included as part of a person’s estate planning documents, it’s important to realize that financial institutions are often reluctant to rely on self-prepared or attorney-drafted forms. During a time of crisis, this can cause unwanted delays and complications.

Revocable living trusts, however, often do not cause the same type of issues. Your trust document can include provisions that automatically designate a successor Trustee in the event you are no longer able to act. Assuming your revocable living trust is properly funded with sufficient assets, your successor Trustee should be able to quickly step in and assist you with handling your financial affairs.

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Once you’ve properly signed all of your estate planning documents, it is important to make sure that they are accessible by the right people at the right time.

Original Documents

Although it was common practice in the past for lawyers to retain the originals of their clients’ documents, that practice is quickly fading away. Many lawyers now have a strict policy of returning the original documents back to their clients after signing. You should be sure to place them some place secure in your home, perhaps where you keep other important documents such as birth or marriage certificates. You should also let the people named in your documents know where they are located if something happens to you.

Copies

Your financial advisers or accountant may request a copy of your documents. Whether to reveal the documents to the people named in your documents or your beneficiaries is a judgment call. On the one hand, since these individuals will be responsible for managing your affairs and assets once you pass away, it makes sense to share the documents with them. On the other hand, you may decide to amend your documents in the future and having superseded copies of your estate planning documents floating around may cause unnecessary confusion. It is best to discuss this matter with your estate planning attorney to make sure you are making the right decision.

Scanned, Electronic Versions 

Making scanned, pdf copies of your executed estate planning documents allows you to easily share them in case of emergency. As mentioned above, your estate planning lawyer may no longer retain originals; instead, however, many are now in the practice of scanning and saving electronic versions of their clients’ documents. If that is the case with you, sharing your lawyer’s contact information with your loved ones may give them an additional place to look if they cannot locate your estate planning documents.

Labeling File Names

The file names for your scanned documents should indicate (a) what type of document it is, i.e., Living Trust, Will, Durable Power of Attorney, etc., and (b) the date that the document was signed.

Digital Accounts and Passwords

It’s also a good idea to put together a list of your online accounts along with passwords to access those accounts. In addition, you may want to leave behind instructions on what your wishes are concerning digital assets such as e-mail, social media accounts, etc.

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Written Statements

Generally, a written statement made by the decedent controls so long as it is clear. Specifically, California Health and Safety Code  §7100.1 provides:

(a)  A decedent, prior to death, may direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided. Unless there is a statement to the contrary that is signed and dated by the decedent, the directions may not be altered, changed, or otherwise amended in any material way, except as may be required by law, and shall be faithfully carried out upon his or her death, provided both of the following requirements are met: (1) the directions set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and, (2) arrangements for payment through trusts, insurance, commitments by others, or any other effective and binding means, have been made, so as to preclude the payment of any funds by the survivor or survivors of the deceased that might otherwise retain the right to control the disposition.

(b)  In the event arrangements for only one of either the cost of interment or the cost of the funeral goods and services are made pursuant to this section, the remaining wishes of the decedent shall be carried out only to the extent that the decedent has sufficient assets to do so, unless the person or persons that otherwise have the right to control the disposition and arrange for funeral goods and services agree to assume the cost. All other provisions of the directions shall be carried out.

(c)  If the directions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.

No Written Statement

However, If there is no written statement, then under California Health and Safety Code §7100(a)(1)-(9) the duty to control the disposition of remains, location of and conditions of internment, and arrangement for funeral goods and services falls upon the following individuals in the order below: 

(1) Agent under the power of attorney who has the right and duty of disposition

(2) Competent surviving spouse

(3) Competent surviving adult child or children

(4) Competent surviving parent or parents

(5) Competent surviving sibling or siblings

(6) Competent surviving relevative or relatives in the next degrees of kinship

(7) Conservator of the decedent when the decedent has sufficient assets

(8) Conservator of the estate when the decedent has sufficient assets

(9) Public administrator when the decedemt has sufficient assets

Keep in mind, however, that if the decedent died while on duty for the Armed Forces of the United States and used a United States Department of Defense Record of Emergency Data, DD Form 93, this takes prioirty. 

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