Legal Question in Wills and Trusts in California

Re: Wills

Most likely, the power of attorney will give the son greater power with the medical authorities in making medical decisions. If nothing else, you are potentially setting yourself up for a court battle not unlike the one that has recently been in the national headlines. If your husband wants you to make the decisions, he should update this document.

Regarding the other assets, the will only controls probate assets. Assets held in joint tenancy with the right of survivorship generally avoid probate and would go to the surviving owner. In addition, if you are omitted from the will, you may be able to assert a "widow's forced share" and claim anywhere from 1/3 to 1/2 of the estate, depending on the size of the family.

Many of the protections described above require post-death court proceedings, which are never cheap. It's time to update your estate plan and avoid this potential nightmare.

Re: Wills

Joint tenancy assets pass to the surviving joint tenant, regardless of what one's will says. Also, for assets not in joint tenancy, you can elect to take a share (1/2 to 1/3, depending on the number of his children) of his assets if the will or trust he has was not updated after your marriage.

Powers of attorney are not usually irrevocable, but it would be a good idea to update these for each of you--there are two types, one for health care decisions and one for financial decisions.

Re: Wills

I would like to suggest that both of you see an estate planning attorney to update your husband's estate planning documents including the durable power of attorney and create a Advance Health Care Directive, if he does not already have one, to reflect his current wishes. It appears that you also need to prepare a durable power of attorney and advance health care directive for you as well. This would be a good time to get these important documents taken care of.

Meanwhile, any assets held in joint tenancy will pass to the surviving spouse upon the death of the first spouse. So any assets held in joint tenancy should pass to you if your husband dies first without going through probate and despite any provisions in his will indicating otherwise.

I hope this helps.