In California, beneficiaries under a trust are entitled to annual accountings from the trustee (usually the executor of the will) unless the terms of the will stated otherwise.

Absolutely!  You do not have a right to keep funds given by mistake. Consult a local probate attorney regarding the statute of limitations on recovery of the disbursement.  If the beneficiary refuses to return the balance, the executor will sue on behalf of the trust, and the costs of suit might be added to the recovery.

You should review your estate planning documents periodically. If it is not up to date when you die, your estate may not be distributed as you wish.

Your Trust can be changed through an Amendment, a legal document that must be drafted and executed with the same procedure that applies to Trusts. Do not change your documents by writing on them or by crossing out words or sentences.

You should review your plan when:

• You get married or divorced
• There are major changes in your family (births or deaths)
• Your children come of age
• You receive a windfall or significant loss of assets
• You no longer find your choice of guardian or executor appropriate
• It has been 3 years since your last review

Which brings me to today’s subject:  As a senior, what documents do I need to prepare in case I become incapacitated and can’t make my own financial or health care decisions?  Of course, everyone should have these documents, not just seniors – incapacity can strike at any age for a multitude of reasons: accident; illness, etc.

DURABLE POWER OF ATTORNEY

The Durable Power of Attorney (Probate Code §4022) is a document you can sign while you still have capacity, which will grant powers to another person (your agent) to handle your financial affairs.  We call it “Durable” because it can still be used if you become incapacitated (Probate Code §4124).  It “survives” the incapacity of the grantor of the powers.  A normal power of attorney will cease acting if you become incapacitated – that’s a built-in safeguard, since you wouldn’t be able to revoke the power yourself. 

So with a Durable Power of Attorney, someone you trust (someone you really  trust) can handle your affairs for you: pay your mortgage; file your taxes; re-finance your home; apply for disability benefits; etc.  Your agent won’t be able to take anything of yours as a gift with your your specific written authorization (Probate Code §4128).  If you pass away, the powers cease – at that time your Executor (under a Will) or Successor Trustee (under a Trust) would handle financial affairs of your estate.

Be absolutely certain that your named agent is both competent and trustworthy!  Seniors have lost their savings to unscrupulous agents – even to agents who are family members.

ADVANCE HEALTH CARE DIRECTIVE

With an Advance Health Care Directive, you name someone to make medical decisions for you if your primary care physician certifies that you can no longer make decisions for yourself.  Why would that happen?  It could be due to an injury or dementia (whether due to a chronic condition like Alzheimer’s or a temporary condition such as the result of medications).

Additionally, you can provide detailed instructions regarding medical care, including: life support treatment; convalescent care; organ donation; etc. 

Either of these documents can be revoked at any time, as long as you are still competent.   Give copies to your designated agents, doctor, nursing home, and family.  And if you’re admitted to a hospital, bring a copy of your advance health care directive with you.

If you don’t complete these documents, it may be necessary to appoint a Conservator to care for you in the future.  Consult an experienced attorney with any questions!

What should you put into your Letter? Here are some suggestions:

Tell where copies of your will and/or revocable living trust can be found and where the originals are kept. Also give the names, addresses and telephone numbers of all personal representatives, executors, trustees, lawyers, conservators or guardians involved, and explain any potentially puzzling provisions that the documents may contain.

List essential papers and records and tell where they can be found. What’s important?  Birth Certificate, Marriage Certificate, Citizenship Papers (if any), Judgment of Divorce, Living Trust/Wills, etc. 

You also might want to give funeral instructions (those should also be in your Advance Health Care Directive / Living Will).

List your life insurance agent.  You should also mention any medical or disability insurance that might cover medical bills charged to the estate.

I do *not* recommend you list bank accounts, but it would be useful to tell your executor where they can get quick cash — there will be some immediate expenses after death.

Give the names and addresses of your employer, and well as any fraternal organizations or unions you belong to. They may provide death benefits or burial expenses. In addition, give your Social Security Number.

If you own real estate in addition to your house, give the same information about it, along with the names of your real estate and insurance brokers.

List all your personal property and how you would like it distributed if you have not done so in your will or a Separate Written Statement authorized in your will or trust—but keep in mind that your instructions will not be binding unless specifically mentioned in the will, trust, or Separate Written Statement. 

Make a list of major debts you owe and major debts that other persons owe to you. Tell precisely how you want these matters settled, including whether you want to forgive any debts owed to you.

Tell where to locate copies of your past tax returns, where current tax information can be found, and name your CPA or tax preparer.

List any trusts under which you are named as a beneficiary, or any trusts set up by others under which your heirs are beneficiaries. Give the names and addresses of all persons involved, including attorneys.

List the names, addresses and telephone numbers of your parents, if living, and of any other relatives or close friends who should be notified of your death. Also give the names and addresses of your employer and any close associates at work.

Give the names and addresses of any lawyers, accountants, brokers and the like not already mentioned who might be helpful to your survivors.

Does this sound like a good idea?  Try drafting one for yourself!  If nothing else the exercise is bound to remind you of things you need to prepare for yourself.