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Definition: A Revocable Living Trust (RLT) is one created by the settlor during lifetime, in which, during his lifetime, the settlor retains the absolute right to totally revoke the trust, change its terms to any degree, and/or regain total possession of the property in the trust.

Put simply, it is a agreement where you (the settlor) gets to appoint an agent (the trustee) to control how your property is managed and distributed throughout all phases of your life and death.

Benefits:

1. Control over your assets (that you put into the revocable trust) while you are alive and well, if you become incapacitated, and after you pass away.
2. Privacy in the handling and administration of your assets during your lifetime and upon your death.
3. Reduce estate taxes and legal expenses by planning ahead and being able to avoid the probate process through a private trust administration.

Definition: A Will is a written document which states an individual’s wishes as to how he or she wants his/her property to be disposed of at death. A Will therefore specifies “who gets what”- and is some cases-“who does not”.

A Pour Over Will is the same as a Will, however in a Pour Over Will you make your Trust the beneficiary of all of your assets. When you set up a Trust, you will transfer title of your assets to the name of the Trust, but if there are any assets that  were not properly transferred, the Pour Over Will will make sure they are transferred.

Benefits:

1. A will is completely revocable (changeable) during someones lifetime, but becomes irrevocable (not able to be changed) at the moment of death.
2. You get to control who gets your property upon your death and you get to name who is responsible for carrying out your wishes (Your Executor).

Limitations:

1. In California, even if you have a will, your executor will still be subject to having to go through some form of probate. The cost of going through probate will be paid for by your estate.
2. Upon your death, your executor (or his/her attorney) will file your will with the probate court, and it then becomes public record.  Thus, you lose the benefit of privacy that a Trust provides. This may open up the floodgates for disgruntled family members or creditors to dispute the will. Your estate will have to defend the will and the legal costs will likely be paid from your estate, lowering the amount that you can leave for your beneficiaries.
3. Your will only takes effect after you pass away and does not control any property if you become incapacitated.

Definition of Beneficiary: A beneficiary is the person who is legally entitled to receive the assets from a trust or a will. A beneficiary can be a person or an organization (such as a charity).

What is a Living Will?

A living will is a legally binding document that outlines what you want for your own care, thereby preventing some painful debates between family members concerned about your well-being.

It also designates an individual to make medical decisions for you when you cannot, a power that you can limit if you choose. Creating a living will is an essential component of creating an estate plan.

If you experience a serious illness, you may be unable to tell your doctors what medical treatments you want to receive or refuse. Similarly, as you reach the end of life, many circumstances can limit your ability to communicate your health care preferences. It may be a period of weeks or months during which important choices are made on your behalf.

Forms of a Living Will

In California, a living will usually takes the form of an advance health care directive. According to the California Medical Association, traditional living wills are focused only on the refusal of life-sustaining treatment in the event of incapacity.

The living will was often combined with a power of attorney that authorized a specific individual to make health care decisions.

However, the advance health care directive addresses life-sustaining treatment in any situation. It includes the appointment of an agent, also known as a power of attorney for health care, to make decisions. Individuals can include a range of issues in the directive, such as preferences for palliative and hospice care.

If you made a valid form of a living will prior to July 1, 2000, such as a Natural Death Act Declaration, a Durable Power of Attorney for Health Care Directive to Physicians, these remain in effect until revoked.

When a Living Will is Used?

The authority of a health care agent under an advance care directive comes into effect when your primary physician determines you are unable to make your own medical decisions. You can also choose to have that authority come into effect immediately, an option that should be carefully thought through.

Contents of a Living Will

In addition to naming your health care agent, the advance care directive allows you to name your primary physician, although the latter is optional. Individuals may also direct the use of organs after death, such as for transplant or research purposes.

Some individuals choose to refer to specific medical procedures in their living will. The Mayo Clinic recommends thinking about such things as:

• CPR and other forms of resuscitation;
• Being on a ventilator;
• Tube feeding;
• Dialysis;
• Antibiotic or antiviral medications;
• Pain management and other forms of comfort care.

While you may choose to refuse these procedures completely, you may also want to simply place limits on their use. For example, you may agree to be on a ventilator for a specific period of time.

Since it may be difficult to make these choices without more information about what the procedures entail, it is a good idea to discuss the issue with your physician before finalizing your directive.

Once preferences are established in a living will, a doctor can create a POLST (Physician Orders for Life-Sustaining Treatment).

Most appropriate for those with a serious illness or nearing the end of life, a POLST turns the details of a care directive into treatment orders for medical teams.

Creating a Living Will

The state of California has an Advance Health Care Directive Form for individuals to create a living will. However, it is not necessary to use this form to create a valid directive.

Since some specific issues must be addressed in a directive in order for it to be upheld by a court, it is a good idea to draft the document with a lawyer’s assistance.

You and two witnesses must sign your directive in the presence of a notary or lawyer. The witnesses are, in part, certifying that they not only saw you sign the directive but that you were not under duress while doing so and were of sound mind. Witnesses may not include the health agent named in your living will, nor may they include members of your health care team. A special witness is also required for patients in care facilities.

Apart from the legal requirements, it is good practice to discuss your care directive with family members. Ultimately, your end-of-life preferences are your own, but knowing them in advance can help loved ones deal with the situation with less emotion and conflict.

Choosing a Health Care Agent

In California, there are some restrictions on whom you can name your health care agent. In general, it cannot be your doctor, a member of your care team, or an employee at a care facility where you reside.

You should choose someone whom you trust, is comfortable discussing medical issues, and is well-informed about your wishes. Since agents often have to be a patient advocate in court or in discussion with family members and doctors, they should be able to handle conflict appropriately. For your own peace of mind, confirm your agent supports your preferences and is willing to enforce them.

You should review your living will periodically to make sure it still reflects your wishes. If you remarry or experience a new medical diagnosis, you may want to consider revising the document. At any time before it is invoked, you can update your care directive, including changing your health care agent.

A living will, like all aspects of health care, is of great importance to you and your family members.

It helps to ensure you not only receive the care you want, but that loved ones experience the least possible amount of stress during an already difficult time.