Legal Question in Wills and Trusts in California

A durable power does nothimg after death, you would need a,trust

You should really consider a trust because the durable power of attorney is not what you are looking for.

Within the common law, a power of attorney will become ineffective if its grantor dies or becomes "incapacitated," which means unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called "power of attorney with durable provisions" in the United States. In effect, under a durable power of attorney, the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor's death. Key point being "until the grantor's death.

Once again, you need a trust. If you want to do that, contact me by Googling me. Hope this helps.

Yes, a trust is the best option for you.

I would be happy to assist you in putting together your estate plan, including for your wife.

A trust is probably best to avoid probate for you and your wife. If you would like, feel free to call our office for more information. We are just down the street in Fair Oaks.

Best of luck

Tom

Even a durable power of attorney is cancelled by your death. If everything is in JTWS, or pay on death beneficiary accounts, that will probably be sufficient to avoid probate. If there is anything that is not, and either cannot be put or you do not want to put in that kind of account will require a trust to avoid probate.

I disagree with the other attorneys, except for Mr. McCormick. A joint tenancy avoids probate, and based on the facts that you have provided, you have placed all of your assets in joint tenancy. A trust can end up in probate litigation if there are disputes with other heirs/ beneficiaries mentioned in the trust.

From a tax perspective, placing your home in title with your wife as community property with right of survivorship may be better. This gives a stepped up basis to your wife if you die, and reduces her capital gains tax.

To be on the safe side, I recommend you speak to an estate planning attorney who understands tax issues.

While titling property in joint tenancy might avoid probate if one of the spouses pass away, you still might wish to consider a trust for two reasons. First, in the event you and your wife pass together with property held as joint tenancy, a mess will likely result. Second, while joint tenancy might avoid probate as to the first spouse to pass, the surviving spouse will be left to execute an estate plan. Additionally, if any health issues arise in the future, such issues could affect one of the spouse's ability to create an estate plan. I think all of these factors should be examined in addition to tax issues. Long and short of the story however, is that you should speak to an estate planning attorney that understands tax issues and looks at all of your personal circumstances.