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Do You Need an Estate Plan?

Areas of Practice:

Power of Attorney
Elder Law
Asset Protection
Estate Planning in San Jose
Health Care Directive

Professional Affiliations

JDSUPRA - Your Legal Intelligence

Member of the State Bar of California

Santa Clara County Bar Association

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(Please study the table and decide what’s important to you, then as you read each section go back to the table and see if your questions have been answered.)

Estate Planning…now, this is a term that has a degree of exclusivity to it! How often do you use it in everyday life? How natural is it to think about dieing? Not very! Or, as many of my come-lately clients have said: ”I’ll be dead. Why should I worry about that….let the kids deal with that.” Well, I guess, it all depends on how much additional grief, pain and discord you want to avoid…because that’s what happens in vast majority of cases that are left to human imagination…and if there’s money involved and with a degree of personal animosity that unfortunately exists in many families added to it, the sky and the imagination of the legal profession (and that’s pretty endless) are the limits. So, now that you’ve bee a responsible person your entire life, take one more last step to leave a legacy to be remembered for avoiding helping all the parasites get rich off of your hard earned dollars.

Now that you’ve read this far…. in a simple and practical sense, estate planning simply means doing some work now to avoid court battles and troubles between your survivors, and, while we’re at it, minimizing the taxes to be paid. In other words, some amount of planning will help prevent family wars, ill feelings, keep lawyers and others from getting rich off of your hard earned dollars and minimize taxes. By the way, the recent congressional activities have reduced death taxes, but they’re still there. And, unless the laws change again, they return with the vengeance in 2011, i.e., the same laws as were in the effect in 2000 will govern again, which essentially means that the estate tax exemption will be reduced to $1,000,000. This is one area of law that you can expect lot of changes in as we go forward and it would be prudent to stay updated on this subject. Presently, you can exempt from the estate taxes the following amounts:

Highest estate tax rate on the excess
2005 $1,500,000 47%
2006 $2,000,000 46%
2007 $2,000,000 45%
2008 $2,000,000 45%
2009 $3,500,000 45%
2010 no limit* NA*
2011 $1,000,000 55%
* presently true, October 2005


What are some of the things you should be thinking about and take care of before an illness or accident prevents you? Some of what you’re about to read may be depressing, but, if attended to now will prevent lot of pain later.

  1. Who will attend to my financial and other matters in case of serious illness?

  2. Who will make end of life decisions that will prevent wasting of the assets on hopeless life support treatment that only serve to enrich others? 

  3. Do you want to donate organs? Do you want burial or cremation? If cremation, where do you want the remains to be kept? May not matter to you, but I can assure you that it does matter to the survivors! 

  4. How do you want your personal or real property divided? Your wishes may be different from those of your spouse or others involved! Do the children or others in your life have the financial maturity to manage the newly acquired wealth? Should all of the assets be distributed at once or spread over several years? Should some of the assets be designated for education, buying a home, starting a business?

  5. How would your children from this or a prior marriage who are under 18 years of age, or others who cannot take care of themselves, be provided for?

  6. If married, do you want to preserve for your children your portion of the assets, or should you run the risk that your spouse’s future spouse may end up with some or all of it. Some of my new clients have already had this unfortunate experience, and it is painful and expensive.

  7. Do you want to give some of your assets to your favorite educational institution, religious organization, charity or others?

  8. Do you (also) think that your life insurance proceeds are not subject to estate taxes? Presently estate tax rates are about 45%. What can be done to reduce this serious financial loss and keep the money in the family instead?

  9. Suppose, that you have taken care of all the above! As the situations change, you should reconsider the individuals involved, asset distributions, the beneficiaries, etc. In other words, review and update your plan.