Figuring out what to do with your assets after you pass away is a large component of estate planning, but generally, planning for the proper management of your financial and health care while you're alive is another major component. There are 3 broad avenues that may need to be used if you become incapacitated to the point where you are no longer able to express your wishes.

Medical Decisions

First, the Advance Health Care Directive may be needed to give proof to doctors or hospitals that the agent you've selected has the authority to make medical decisions for you. Without this, your family might run into conflicts about what you want regarding medical treatment.

Financial Decisions

Second, the Durable Power of Attorney may need to be recorded in the county where you own real estate or be provided to financial institutions where you have accounts so that your agent can transact on your behalf. This can be a huge benefit and help your family avoid the need to have a conservator appointed for you.

Successor Trustees

Third, if you've established a trust, the successor Trustee of your Trust may need to be called into action to take control of the trust assets so that they can continue to be used for your benefit. For those who have trusts, the assets held by that trust can only be utilized by those who have authority to do so, and the successor Trustee is the first in line. This also helps your family avoid the need for a conservatorship.

As such, the nature of an estate plan can be just as important while you're alive as it is after you pass away.

Estate planning is unique in the sense that it intersects with so many other areas of the law. It's not uncommon that a client's estate plan might raise issues related to real estate, business, employment, insurance, intellectual property, and taxes. On top of that, a skilled estate planning lawyer will generally have excellent interpersonal skills and navigate delicate family or other issues with common sense, objectivity, all while maintaining the highest levels of confidentiality and ethics.

One of the primary reasons that I recommend hiring a trained estate planning lawyer rather than taking a DIY approach is simply because of the experience the lawyer has. He or she has probably seen the situation you're facing hundreds, if not, thousands of times. The lawyer will usually have helpful suggestions on how you can transfer your assets in the most efficient manner (whether from a tax perspective or otherwise) and can often serve as the intermediary for bringing comfort to the family about a particular decision you've made (for example, the selection of one of your children as the manager of a business over the others after you've passed away).

Estate planning lawyers can also serve as a sounding board for potential business and personal situations that come up in your life. Lawyers are trained to view facts objectively, and can play "devil's advocate" to expose you to a different way of viewing your issue. In the backdrop, the estate planning lawyer will be assessing your situation in light of laws that may be implicated as a result of your decisions.

Certainly utilizing a document preparation service can save you a few dollars in the short run, but over the long term, hiring a competent estate planning lawyer could save you quite a bit more.

Even though you have an estate plan in place, you might still wonder what your family is going to have to do after you pass away. It's an important question and something that your family should be aware of since they (or someone else close to you) will most likely be the ones who will be carrying out the wishes that you've specified in your estate planning documents. The sequence of events that happen after you pass away turn primarily on the type of estate planning device that you've utilized.

Frozen In Time

As a general matter, your Will and/or Trust will be irrevocable (meaning that they cannot be altered) after you pass away. If you only have a Will and you have a large enough estate, your Will will need to be probated. Your Will will be probated in the county where you were living at the time of your death (usually). If you have real estate outside of California, then your Executor may need to initiate an ancillary probate in those other states.

Trusts

If you established a Revocable Living Trust as your primary estate planning device, then after your death, your Trustee will handle the administration of the trust without court supervision or probate. The courts are available to settle any issues that your trustee or your beneficiaries may have, but otherwise, there's no need for court supervision. If you were married or in a registered domestic partnership at the time of your death and your trust holds community property, usually only your half of the community property and separate property will be affected, and the provisions of your trust that affect your property will become irrevocable and unamendable. (Your spouse or registered domestic partner's half will still be totally within his or her control.)

Probate Anyway?

Even though one of the main goals of establishing a trust is to avoid probate, there might be a few situations where a probate proceeding may be initiated. There are additional expenses in beginning the probate process, but it could make sense in the following contexts:

1. The Executor might want to establish that your Will was valid.
2. It may be necessary to nominate the Guardian(s) that you've named in your Will to care for any minor children that you may have.
3. Probating your Will can shorten the creditor's claim period from 1 year to 4 months.

Although it is not always advisable to divulge the specific contents of your estate planning documents to your family members, it can be a good idea to loop them in to the process so that they know what to do if you suddenly passed away. 

A basic function of estate planning is to make sure the people or organizations that you want to receive your property actually receives it, but have you really thought about how that would work? Would you just give a lump sum to your teenage son or daughter? If you left money for a charity, how would you know they are using it in the way that you want? What if a person you wanted to leave something to passed away before you--who would get it then? If you have a business, will your partners buy you out? Or, will your family join the business and work in it?

Some Basic Techniques

As a general rule, I think the "KISS" method works quite well in estate planning. (KISS = "Keep It Simple, Stupid") The more complications that get introduced to a distribution scheme, often the more failure points you may be introducing. That being said, there are some basic, tried and true techniques that work and are often good to implement. Here are some of them:

1. Leaving gifts to a young beneficiary in a trust that call for distributions at various ages. Or, if the amounts are rather small, utilizing "CUTMA" to hold the property for the beneficiary until he or she reaches a certain age.
2. Utilizing a marital trust to hold property for your spouse to give him or her lifetime enjoyment of those assets, but also ensure that specified beneficiaries (often children) will receive whatever is leftover.
3. Providing that where a named beneficiary fails to outlive you, the property going to that person will get distributed among his descendants. This is a commonly used provision where you want to benefit not just the beneficiary you've named, but also that person's family.

If you engage an estate planning lawyer, you will undoubtedly face one or more of these concepts depending on your situation (e.g., whether you are in a relationship or have children).