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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One of the major objectives of using a revocable living trust is to plan for incapacity. For that reason, revocable living trusts typically contain a provision that provides for a successor Trustee who is able to manage the assets of a trust for the benefit of the Trustor (the creator of the trust) while the Trustor is incapacitated.

The standard for when the successor Trustee will assume the role of Trustee usually depends on the medical determination of one or more physicians. Some trusts may also allow the successor Trustee to make this determination based on his or her personal judgments. As a practical matter, however, financial institutions that hold the trust assets may have a difficult time accepting an informal determination by a successor Trustee.

If relying on the certification of one or more physicians, it is important to ensure that an Advance Health Care Directive naming an agent is in place. A physician may decline to render an opinion regarding the current Trustee's capacity without a document allowing disclosure of sensitive medical information.

As our population's lifespan increases, the risk that a portion of it may be spent in an incapacitated state makes it even more important to ensure that proper measures are in place to plan for these situations.

When most people think of estate planning, they think of money, investments, real estate, and other items of value. One thought that is overlooked are the important medical decisions that may need to be made if you became incapacitated. For this reason, just about every estate plan also includes a document called the Advance Health Care Directive.

Features Of An Advance Health Care Directive

The Advance Health Care Directive allows you to tell your medical providers your wishes with respect to life-sustaining treatment if you have a terminal illness, if you're in a coma, or the risks of treatment would exceed the expected upsides of that treatment. You may also specify the parameters of any relief from pain that you want or organ donation. Perhaps one of the most important things the Advance Health Care Directive does is allows you to name one or more individuals (also known as an "health care agent") to make decisions for your regarding your health care.

Powers of A Health Care Agent

In general, the health care agent has the following powers:

1. He or she has the right to receive your medical information
2. He or she has priority over others in making health care decisions for you
3. He or she has the power to deal with your remains after you pass away (except to the extent that you specify in the Advance Health Care Directive)

California has conveniently created a statutory form of Advance Health Care Directive. You can find it for free in the California Probate Code Section 4701, so there's no reason not to have one!

After the first real meeting, the estate planning lawyer may have additional follow-up questions. But at this point, assuming you've made some key decisions, the lawyer should have enough data to begin researching any issues (if any) and drafting your estate planning documents. A typical estate plan in California consists of the following documents:

1. Revocable Living Trust
2. Pour-over Will
3. Durable Power of Attorney (Financial Decisions)
4. Advance Health Care Directive
5. Assignment of Assets
6. One or more real property deeds

Draft Documents

After an initial draft of the documents have been prepared, the estate planning lawyer will typically send them to you via e-mail or regular mail so that you can look them over and ask any questions you may have. Alternatively, you may wish to set up an appointment to go over each document with the guidance of your lawyer. This meeting doesn't need to be in person, and can be over the phone.

Revisions

If during your review you notice things that you would like to change or things that don't accurately reflect your wishes, now is the time to tell the lawyer so that he or she may update the documents before you sign them. The estate planning lawyer may re-send you the updated documents to ensure that the content has been revised to your specifications.

The end result should be a set of draft documents that is ready for signing, witnessing and notarizing.