Technically, everyone has an estate plan. If you haven’t created your own, then the government has one ready and waiting for you – it’s called the Probate Code. While the Probate Code might sound similar to the Pirate’s Code, they really only have one thing in common: you probably won’t be happy with the outcome. The Probate Code is not a guideline, and it is followed quite strictly in the Probate Court.
That being said, the Probate Code was created to be the plan that most people would want. The intended outcome is to distribute a person’s assets to the people that that person would probably have wanted them to go to. Of course, it will take awhile to get there, since it’s all overseen by the Probate Court, who has to look over the executor’s shoulder and approve every move he makes before he makes it. And there’s all the fees involved to pay the court for its trouble. But once all of that is out of the way, what’s left of the estate will go to what’s left of the heirs.
This begs the question: if the government already has a plan in place, then why do you need to create an estate plan of your own? There’s a few reasons why you might want to; here’s some of the more common ones:
- It may be that you don’t like the Probate Code, and you want to make your own decisions about where your money goes. Or perhaps you’re fine with the outcome, but don’t really want the Probate Court to take a part in it (or of it). Since Probate Court is required if you’re worth more than $150,000 (which, if you own a home in California, is a given), you’ll need to take some steps if you want to stay out of it.
- Let’s face it, what happens to your stuff after you die is not your problem. The real reason you make post-death plans is to help the people who will be dealing with it. They will (hopefully) be very busy weeping copious tears over your grave and writing bad poetry in your memory. Making the decisions in advance will take much of the burden off their shoulders, leaving them free to carry out your wishes and still have time to make that poetry reading.
- An estate plan doesn’t just cover what happens after you die. It also covers who will talk to your doctors and pay your bills if you’re stuck in a hospital bed unable to make decisions or communicate those decisions to anyone. Since you’ll actually be alive and these decisions will affect you, you should make sure in advance that the person talking to the doctors knows your wishes and will carry them out. Also, make sure the person paying your bills won’t write himself a check for a new convertible – because, after all, he does come by to check on you, and you’d want him to get there quickly, right?
If any of these reasons resonate with you, you should probably talk to an estate planning attorney about creating your own estate plan. You can talk to me about it at kaway@kawaylaw.com. And, if you only remember one thing from this article, remember this: the Probate Court will always follow the Code.