A Physician’s Order for Life-Sustaining Treatment (“POLST”) is a medical order that tells emergency health care professionals what to do in case of a medical crisis when you cannot speak for yourself. No agent (or surrogate) is named. The document is prepared by a medical professional and communicates orders for any person who is seriously ill or frail and near the end of life. It gives specific orders for specific circumstances and is designed for use by emergency personnel. Because the POLST form is completed when someone is seriously ill or frail, their diagnosis and prognosis is known so more specific treatment decisions can be chosen and documented. A copy of the signed POLST order is a legally valid medical order. How is it Different from a Health Care Directive? An Advance Health Care Directive (“AHCD”), on the other hand, is a legal document created by an individual and not a medical order. It names an agent who is authorized to speak on your behalf regarding your medical wishes. It is used to provide guidance about what types of treatments you may want to receive in case of a future, unknown medical emergency. When you can't speak for yourself, your health care team will review your advance directive and talk to your agent to develop a treatment plan. All adults should have an advance directive but not everyone needs a POLST. My Forms are Complete, Now What do I do with Them? I am always asked about what to do with completed documents. How are health care professionals supposed to access them and treat you accordingly? My usual advice is to provide a copy to your named agent and any close friends or family. You can also maintain a copy in plain sight in your home so that an emergency responder can see it if you are unable to produce it yourself while some clients choose to carry a physical copy but these options are not always foolproof. Fortunately, California is working on a pilot project in Contra Costa County and the City of San Diego to test the development and implementation of electronic registries (“eRegistries”). The registries will enable the submission, storage, and retrieval of POLST forms in various healthcare settings. If the project is successful, California could implement an electronic access point for health care professionals statewide thus safeguarding that your wishes are met. Please call me if you would like to learn more about health care planning at (949) 387-8707 or email me at lynn@lynngirvinlaw.com. I’d love to hear from you! For more information about the eRegistry pilot program check out https://www.chcf.org/project/polst-eregistry-pilot-initiative/ For more information about POLST forms please check out https://emsa.ca.gov/dnr_and_polst_forms/ #EstatePlanning #WillsandTrusts #HealthCareDirective #LynnKGirvin #EstatePlan

We’ve all heard it is a smart idea to avoid probate, but why? Most people want to spare their family a prolonged, expensive process after their death and this is just what probate will get you. Generally, probate is the court-supervised process of authenticating a last will and testament and includes determining the value of the decedent's assets, paying final bills and taxes, then distributing the remainder of the estate to the rightful heirs or beneficiaries. The average California probate can last up to two years. How long probate takes will depend on the size of the estate and the type of property to be probated. Most of what takes place during the probate procedural is clerical. The attorney handling the matter will prepare the proper paperwork and make a few routine court appearances but most of the process is handled through the mail and that takes time. Both the attorney and executor will be entitled to fees from your gross estate. If you own a home worth $1,000,000 and still owe $600,000, the fees are based on the gross value of $1,000,000 and not your equity value of $4,000,000. Here are the current rates: 4% of the first $100,000 of the gross value of the probate estate 3% of the next $100,000 2% of the next $800,000 1% of the next $9 million .5% of the next $15 million Those rates apply to both the attorney and the executor so your estate could end up paying about 5% of the its value. Probate fees for an estate worth $1,000,000 could total around $50,000. That is a big chunk of money! But there are times when drafting a will that will lead to probate makes sense. Many young couples who don’t own a home but have children are best suited for using a will to address who gets their property, but more importantly, it can create a framework if both parents should die as to who will take care of the children and who will manage the children’s inherited wealth. Everyone has specific estate planning goals and estate values vary greatly so of course one size does not fit all. Generally, it’s a good idea to lay out your wishes with the comprehensive estate plan essentials: Will, Revocable Trust, Durable Power of Attorney, and Advance Health Care Directive. #Probate #AvoidProbate #EstatePlanning

"Basis" is an important income tax concept used to determine the amount of taxable income, or capital gain, that results when you transfer an asset. The basis of a particular asset is key in considering whether to transfer that property during your lifetime or at your death. Here I will briefly explain the basics of basis and how it may affect your decision. GENERAL RULE Income tax “basis” is the amount a person invested in a specific asset. Your basis is equal to the amount that asset cost to acquire. By way of illustration, if you purchased a home for $300,000, your basis would be $300,000. If that home is later worth $500,000, your basis is still $300,000. “Gain” on the other hand refers to the amount you receive after sale of that asset, less the amount it cost to acquire that asset (or basis amount). If you later sell the house for $500,000, your gain on that asset would be $200,000. CARRYOVER BASIS Normally, when you give an asset to someone, the person receiving the asset keeps the same basis as the person who gave the asset. This is referred to as “carryover” basis. Any gain on the asset is calculated using the gift giver’s basis. If you give a gift of property to your sister, your sister would use the carryover basis amount to calculate gain. For example: if you originally paid $300,000 for your home and give it to your sister during your lifetime, her basis would be $300,000 regardless of the fair market value at the time of transfer. If she later sells the property for $500,000, her gain would be $200,000 using the basis of $300,000. STEPPED UP BASIS Notwithstanding any complicating factors, the basis of inherited property is equal to the property’s fair market value which is established on the date of death (or an alternate valuation date up to six months after the death). This is often referred to as “stepped up” basis. So rather than the basis remaining at the decedent’s investment amount, the person receiving the decedent’s property gets a “step-up” to fair market value on the date of death (or six months after). The step up creates an income tax advantage because the beneficiary will not have to pay income taxes on realized gain. Using the example above, if at the date your death the home is worth $500,000 and your sister sells it right away for $500,000 then no capital gains would be due. If she later sells it for $600,000, her gain would be $100,000 because her basis would be fair market value on the date your death. (Alternately, property may get a “step down” in basis if the fair market value of the property is less than the investment amount.) You can see that getting a step up in basis is good for the person receiving the asset. If you inherit a house worth $500,000 at the time of the donor’s death then your basis in that asset is $500,000 and you can immediately sell that house with no income tax consequences! MARRIED COUPLES Basis is an important factor in determining how married couples should hold title to their home. Depending on the form of ownership, you may or may not be able to take advantage of a step-up in basis should you outlive your spouse. Many married couples have their home titled as joint tenants. This can create a problem when one spouse dies and the survivor later sells the property because only the decedent’s portion of the property gets the step-up. The basis adjustment is limited to the decedent’s one-half interest. When property held by spouses as community property on the other hand, the survivor receives a step-up in basis at the death of the first spouse potentially creating significant income tax savings for the survivor if the property is later sold. There may be other factors for not titling your home as community property but an issue that should be considered carefully and discussed with an estate planning attorney or tax professional. *This discussion is intended to provide you with general information about income tax basis and does not include all of the variables in determining how your estate plan should be prepared. This handout is not intended to provide legal advice or legal opinions relating to your specific facts or circumstances. Before making and changes to your estate plan you should consult with your estate planning attorney and tax advisor to determine the best options for you and your family. #IncomeTax #IncomeTaxbasis #CarryoverBasis #SteppedUpBasis

Many people feel confused about what they need to get their estate in order. Here are the essentials of a basic estate plan: 1. Will. Your Will is a legal document in which you give certain instructions to be carried out after your death. The role of an executor is to identify and gather all assets, identify all debts and potential claims against the estate, safeguard and protect assets including any real estate investments, and carry out the provisions of the Will for distribution of assets, payment of expenses, claims, taxes, and any debts, account for all services and finally, distribute the balance of the estate. In estate planning, Wills accomplish things that Revocable Trusts cannot, for example, the testator can nominate guardians for minor children and provide a vehicle for the executor to place estate property in trust. 2. Power of Attorney. A Power of Attorney is a written instrument in which one person (the “principal”) designates another (the “agent” or “attorney-in-fact”) to act on the principal’s behalf in private affairs, business, or some other legal matter. If a power of attorney is made “durable” it remains in effect after the incapacity of the principal. Generally, a durable power of attorney is only effective until the principal’s death, revocation of the power by the principal, or termination of the power by its terms. 3. Advance Health Care Directive. Health Care Directives allow you to state your wishes regarding your health care treatment. You are able name an “agent” who will carry out your wishes and give detailed instructions about what actions should be taken for your health if you are no longer able to make decisions for yourself due to illness or incapacity. 4. Trust. A Revocable Living Trust is a legal entity in which legal title and management of specified property is vested in a trustee who administers the property for the benefit of a designated beneficiary. The person creating the trust is called a Settlor and usually names himself or herself as trustee. Revocable Trusts are commonly used in California as tools for transferring a person’s property at death and managing property during periods of incapacity. On the Settlor’s death, the property is deemed owned by the Trust rather than by the client for the limited purpose of determining whether court supervision is required. The trustee, or successor trustee, then distributes the trust property as provided in the trust document. Trust assets may include real estate, stock in a closely held corporation, stocks and other securities held by brokerages, small business interests, patents and copyrights, and precious metals, valuable works of art, valuable stamp or coin collections, and other tangible assets of value. Most people create a Revocable Trust for the primary purpose of avoiding probate. There are two major reasons you want to avoid probate: It is time consuming and expensive. Probate is a court-administered process that typically requires the assistance of an attorney who is entitled to receive fees payable from the decedent’s estate. In California, those fees are set by statute which can be significant and not always necessary. Specifically, the fees are 4% of the first $100,000 in assets, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $15,000,000. By way of illustration, if a simple estate with $400,000 of assets (this is gross value and does not consider any debts on the property), the required fee to the attorney and executor would be $11,000 each. While the executor fees can be waived if the heirs are serving in that role, the attorney fees are likely unavoidable. Additionally, court fees and expenses are usually several thousand dollars and appraisal fees can equal as much as .1% of the value of the property. A Trust is not the only way to avoid probate. For example, California does not require a probate proceeding if the gross estate totals less than $150,000. And other assets that transfer to your heirs automatically upon your death are not subject to the terms of your Will. These assets have a beneficiary designation and will transfer directly to recipients without going through probate. Some examples of assets that have a beneficiary designation include joint tenancy; life insurance; retirement accounts; and pay-on-death accounts (also called “POD’s” or “Totten Trusts”). Here are some factors to consider when deciding whether to set up a Revocable Trust: a. Substitute for Conservatorship. A Revocable Trust can serve as a substitute for conservatorship, avoiding the necessity of court proceeding and annual accountings if you become disabled. Your property can be handled by the person of your choosing and without the supervision (or protection) of the court. b. Privacy. Unlike a Will, which is a public document, Trusts are private. c. Transition Planning and Distribution of Assets. Revocable Trusts provide uninterrupted trust administration after your death. You have more control over how and when your assets will be distributed. Unlike other probate-avoidance devices, such as titling property jointly with right of survivorship or establishing payable on death accounts (insurance, IRAs, pensions, bank accounts), a Trust, like a Will, is more likely to preserve your intended plan of distribution. d. Estate and Income Taxes. As a rule, Revocable Trusts are tax neutral and provide no tax savings over using a Will. If you are married however, any taxes owed at the first death can be deferred until after the death of the surviving spouse. With a Revocable Trust, the Settlor is taxed as if the Trust were not in existence. There is no requirement to obtain a taxpayer identification number or file a separate return for your trust. If you have any questions or need help planning your estate planning your estate. Call or email me today to get started! (949) 387-8707 #Advancehealthcaredirective #WillsandTrusts #RevocableTrust #AttorneyinFact #estateplanning #PowerofAttorney #HealthCareDirective #Will #Trust

Most Americans feel confused about estate planning. It’s hard to decipher what you really need and how the different parts of an estate plan work together. A recent survey showed that three-quarters of Americans are confused about what they need. Only about 40% have a Will and less than 20% have a Trust. But most people do understand that it’s not good to have no plan. Here is why it's essential to plan ahead. Probate is Expensive We’ve all heard stories about an estate being caught up in the probate process which, in California, is time-consuming and expensive. Probate is necessary when someone dies without proper estate planning documents in place and if their total assets exceed $150,000. The cost for probating an estate is based on the gross asset value which means all that you own is included. The amount you may owe on those assets is not considered. For example, if you own a home worth $900,000 and owe $850,000, the gross value of your home is $900,000. In California, probate costs are set by statute and do not include any special fees for selling off assets, litigation, and tax preparation to name a few. Other Benefits of Estate Planning As you can see, it’s critical to plan ahead. Why not have the proper documents in place to save your family thousands of dollars in probate fees, as well as provide quick, easy distribution of your assets in a way that you want them distributed? And most importantly, avoid family conflict. Also, if you have minor children and want to name a guardian, your estate plan is how you do it. If you want to express your wishes relating to personal healthcare decisions including end of life care (i.e., whether to maintain or remove life support) then consider getting your plan in place. Not only can you provide guidance in these matters, you are also able to transfer specific assets at your death, including your home and a business if you want it to remain in family hands as one generation gives way to the next. If you’re confused about what you may need to plan for your family I’m happy to talk with you. Call me today!

If you are looking for a spouse there’s an app for that … and now there’s an algorithm! Really, there’s a formula behind determining the best age to start looking for a partner. According to journalist Brian Christian and cognitive scientist Tom Griffiths, coauthors of "Algorithms to Live By: The Computer Science of Human Decisions," that age is 26. Generally, the rule says that when you need to screen a range of options within a limited period of time, the best time to make your decision is after you have considered 37% of those options. You could be looking for a new apartment, screening candidates for a new job or even looking for the right romantic partner. Yes, the rule applies to love. Christian and Griffiths say that after you’ve considered 37% of your options in the selection process, you will have gathered enough information to make the best choice. Any extra time spent looking is a waste. Most people are looking to get married for the first time between the ages of 18 and 40. Applying the 37% rule to that age range (37% into the 22-year age span) gets you to just after your 26th birthday. The authors say that if you marry before then you will probably miss out on “higher-quality” partners and any time spent after that, the good options become more and more unavailable. Of course the 37% rule isn’t perfect because it is based in science and can’t therefore consider human emotions. Also, it assumes that most people have a pretty good idea of what they are looking for in a spouse by the time they are 26. It also doesn’t account for the fact that what we are looking for in a partner will probably change dramatically between the ages of 22 and 40. Either way, it is safe to say that by the time you are 26 years old, you can take that leap of faith with a little more confidence! If you are married or single, I can help you with planning your estate. Call or email today to get started! (949) 387-8707 #Marriage #estateplanning

Let’s face it, no one wants to think about aging and illness. In my recent blog post Procrastination About Your Estate Plan? Me Too, I confessed that although I prepare estate plans for people every day, it took years for my husband and I to finalize our own plan. Conversations about your own mortality aren't exactly fun. But they are necessary. A key element to any estate plan is a Health Care Directive. It lets you explain what you do or do not want when it comes to medical treatment. It can save your loved ones from the guilt, uncertainty, and conflict that is created when your wishes are not known. Research shows that the most requested legal advice from legal aid is how to deal with end-of-life issues amidst a family crisis. If there is a way to avoid that conflict why not do it? A study conducted in 2014 and published in the American Journal of Preventive Medicine showed that out of 7,900 respondents, only about 26% had an Advance Health Care Directive. This despite the fact that most people would choose to direct their own medical care. Your directive allows you to state what type of medical care you want to receive should you become unable to speak for yourself. You are able to state the circumstances in which you want to receive life-sustaining treatments and any limitations on those treatments. You can also appoint a healthcare agent to make healthcare decisions according to your instructions as set forth in the directive. We also include a form for free for you to include cremation or burial instructions. I can give you the tools to make the best choices and finally get to the business of protecting yourself and your family with a comprehensive estate plan. Call today to learn more about how you can be prepared. Call (949) 387-8707 or email me today! #HealthCareDirective #Advancehealthcaredirective #EstatePlan

Every week I talk to people who tell me that they’ve been procrastinating about getting their estate plan together. I get it. It took me and my husband years to make the tough decisions and finally get things done and I do this for a living! The most common reasons people finally call to set up an appointment are: An upcoming vacation A scary diagnosis or upcoming surgery A death in the family or that of a friend Birth of a child For my husband and I, we had a vacation planned and just didn't feel right leaving the country without knowing things were finally in order. We put off the process because neither of us could come to grips with whom to name as guardian of our kids should something happen. There is no perfect answer because aren’t we all the best parents to our kids? Nothing like planning a vacation or thinking about an impending surgery or medical test to light a fire when it comes to finally putting your estate plan together. Let’s face it, the instant gratification factor keeps us from doing what we know needs to be done. It’s not like buying a great new couch or taking a weekend road trip. The whole process sounds awful - tough decisions about who to name as a guardian to your minor children or who will take care of your finances, spending money on a legal document that you probably won’t even understand and confusion about the whole process. My message to you is please don’t wait till there’s a crisis. I work to make the process as seamless and affordable as possible. I will explain everything in plain English so you are comfortable. Don’t wait for crunch time to make life’s big decisions. Go into it with a clear head. My advice is to jump on it now. You’ll feel better I promise. Call Lynn K. Girvin today and chat about your concerns. (949) 387-8707 #estateplan #LynnKGirvin #affordable

Nowadays almost everyone has digital assets whether they realize it or not. Although we do not yet have a legally-accepted definition of a digital asset, it is generally known as content owned by an individual that is stored in digital form. For instance, many people keep family photos and other personal information on Shutterfly, Instagram, Facebook, and other similar accounts. If you need to login to an account using a login and password then the information contained on that site is most likely a digital asset. Before the Law A relatively new area of law relates to these digital assets and who may have access to them once the owner is incapacitated or passes away. Up till now some companies (custodians) haven’t allowed access to anyone other than the account holder which has caused problems and confusion for an estate of a decedent. Historically different custodians have had different rules regarding who may access an account. So recently legislatures have undertaken to codify this area of law in order to remove some of the confusion and loss of personal information. The New Law California recently passed the Revised Uniform Fiduciary Access to Digital Assets Act which authorizes a decedent’s personal representative to access and manage digital assets and electronic communications. This new law authorizes a person to use an online tool to give directions to the custodian regarding the disclosure of those assets. The law specifies that if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The new law requires the custodian to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, including when the decedent has prohibited this disclosure using the online tool. And the law makes custodians immune from liability for an act or omission done in good faith in compliance with these provisions. Plain English In simple terms, the person you leave in charge of your digital access now can access those assets under California law. Previously, your representative was limited to the rules of the custodian. Now, custodians may provide an online tool for you to enter the name of your personal representative or you can simply include this information in your estate planning documents. Call me today to learn more about how to protect your digital assets! 949.387.8707 *This discussion is intended to provide you with general information about recent California law and does not include all of the variables in determining how your estate plan should be prepared. Before making and changes to your estate plan you should consult with your estate planning attorney to determine the best options for you and your family.

This year is flying by! It’s already May and summer is right around the corner. In a few short weeks kids will be out of school and the beaches will be packed. Hopefully many of you are planning a great vacation or just a short getaway. The prospect of traveling reminds us like nothing else of the importance of having your Will and other estate planning documents in order. So what are the most important elements of your plan to remember? Before you head out of town, take time to review and update the following items: 1. Will. A Will gives you sole discretion over the distribution of your assets. You are able to specify how your belongings should be distributed minimizing tension among your surviving family members and enabling a smooth transition of your assets. Your Will is also the best place to name a guardian if you have minor children. If you do not have a Will the state will make these decisions for you. 2. Health Care Directive. Give your family peace of mind by providing a Health Care Directive stating your wishes should you become unable to do so yourself. Among other things, you are able to specify what extent you want life sustaining support and whether you wish to donate organs. 3. Power of Attorney. In your Power of Attorney you can give a named person the limited ability to act on your behalf under certain circumstances. This person is called an Attorney-in-Fact, or Agent. The person you name has only the specific power you provide to control assets not held in your trust. Your Agent has the ability to maintain continuity of your estate should you become unable to do so. 4. Possibly a Trust depending on your particular circumstances. A Revocable Living Trust ensures that your loved ones are able to avoid probating your estate. You are able to leave specific instructions as to how your estate should be managed at your death. It is an essential part of most comprehensive plans. Your plan should be reviewed every few years because laws change and it is good to make sure things are set up how you wish. Family dynamics change, kids get older and more capable of possibly managing your estate should you become unable to do so, or maybe a family member is no longer your first choice to be named guardian of your children. Either way, it’s good to review your choices and make those small changes. If you have any questions about your estate plan or need to get started, please email or call me today! (949) 387-8707. #Will #Trust #HealthCareDirective #PowerofAttorney #RevocableLivingTrust #AttorneyinFact