Trusts & Estates Law/Will and Trusts

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Question
Hello Kris,
I'm single, in my late 50s, and my older brother has agreed to be power of attorney and executor over my funeral and will. If he predeceases me, there are no other family or friends I would trust to administer my final expenses or disperse my belongings and assets properly to beneficiaries. Can I set up an alternate executor or power of attorney to oversee my funeral arrangements and estate and include the alternate in the same trust or will? Can my funeral trust/arrangements and my instructions on which of my assets will go to certain beneficiaries, all be included in one contract, will, or trust?
Do you think a funeral home plan as opposed to a funeral trust, or even some other alternative method to pay for my final expenses would be a better idea?

Thank you.

Michael

Answer
Hi, Michael, thanks for your questions.  I don't know if your state has specific laws, procedures or common practices that would answer your questions more specifically and you should talk to an attorney in your area to ask about what the laws/trends are.  In general, here are some guidelines.

Within your Power of Attorney you should be able to name your older brother as your first agent, and name an alternate (ideally 2 in consecutive order) as well in the same document. Since your brother is older than you and has a chance of becoming incapacitated or passing before you due to his older age, you should contact your attorney and amend in (or redo it if it's old) this information as soon as possible.  You will also be able to name a back-up (ideally 2) in your Will.

You should also have drafted, if you don't already, an Advance Health Care Directive or its equivalent in your state where you name a health care agent (and back-ups).

Good choices for all of the above-named documents are siblings, friends and younger relatives such as adult children or adult nieces and nephews.  If your estate is large enough and you have no friends or relatives to fill the various positions, you could create a living trust and name a professional trustee as your successor trustee.  Often if they are named as your successor trustee, the trustee will also agree to be named as your agent on your power of attorney as well.  You have to call professional trustees to see what their minimum estate value is. You can hire individual professional trustees, or institutions with a trustee department (e.g Edward Jones).

If you own a home or have a sizeable estate, you should consult with your attorney as to whether a Will only is sufficient or whether you should have a living trust #to avoid court proceedings for your beneficiaries when you pass).

I don't have any experience with funeral home plans or funeral trusts.  Try calling various funeral homes and asking about their plans and consult with an attorney in your area to learn the pros/cons or trends.  Funeral expenses come off the top of your estate as well as taxes and other debts prior to the balance being distributed to your beneficiaries.

Good luck.  -Kris

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Kris Paden

Expertise

I will be pleased to answer any of your estate planning questions on topics such as wills, trusts, nomination of child guardians, how to avoid probate, how to reduce or eliminate death taxes, durable powers of attorney, probate, conservatorships, special needs child planning, and elder law. I can also assist you with obtaining life, disability an long-term care insurance. I look forward to hearing from you.

Experience

Twenty (20) years as an attorney, and training in Estate Planning at the Law Office of Diedre Wachbrit, APC, Westlake Village, CA.

Organizations
CA State Bar, Pepperdine Center for Estate and Gift Planning, Tarzana Chamber of Commerce, Tarzana Community & Cultural Center, Los Angeles Bar Association, San Fernando Valley Bar Association, Sonoma County Bar Association

Publications
The Transnational Lawyer, University of the Pacific, McGeorge School of Law Legal Journal.

Education/Credentials
Graduated in top 1/3 of class from U.C. Berkeley;
Graduated in top 10% of class from UOP, McGeorge School of Law.

Awards and Honors
Undergraduate: Traynor Honor Society
Law School: Phi Delta Phi Legal Society

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