Estate Planning
Wills & Incapacity Planning
A will is the foundation of any estate plan — but planning for incapacity is equally important. Together, these documents ensure your wishes are honored and your family is protected, whether you pass away or simply cannot manage your own affairs.
Most people understand that a will directs the distribution of their assets after death. Fewer appreciate that incapacity planning — the documents that govern your care and finances if you become unable to make decisions for yourself — is just as critical. Without proper incapacity documents, your family may face a costly and time-consuming court conservatorship proceeding simply to manage your affairs. A complete estate plan addresses both death and incapacity.
What a Will Does — and What It Doesn't
A will directs how your probate assets are distributed after your death, names an executor to administer your estate, and — critically — names a guardian for minor children. However, a will does not avoid probate. Assets that pass through your will must go through the California probate process, which is public, time-consuming, and expensive. For many families, a revocable living trust is a better primary vehicle for asset transfer, with the will serving as a backup 'pour-over' document.
Pour-Over Wills and Trust-Based Plans
When your estate plan is built around a revocable living trust, your will typically functions as a 'pour-over' will — it captures any assets that were not transferred into your trust during your lifetime and directs them into the trust at death. This ensures that assets inadvertently left outside the trust still pass according to your overall plan, though they may still be subject to probate if they exceed California's small estate threshold.
Advance Health Care Directive
An advance health care directive (sometimes called a living will or health care proxy) does two things: it designates an agent to make medical decisions on your behalf if you cannot, and it records your wishes regarding end-of-life care, artificial life support, and other medical interventions. Without this document, your family may disagree about your care — and medical providers may be unable to act without court authorization.
Durable Power of Attorney for Finances
A durable power of attorney for finances designates an agent to manage your financial affairs — paying bills, managing investments, filing taxes, and handling real estate — if you become incapacitated. 'Durable' means the document remains effective even after you lose capacity. Without a durable power of attorney, your family may need to petition the court for a conservatorship to manage your finances, a process that is costly, public, and ongoing.
Naming Guardians for Minor Children
For parents of minor children, naming a guardian in your will is one of the most important estate planning decisions you will make. Without a guardian designation, a court will decide who raises your children — and that decision may not reflect your wishes. Your will should name both a guardian of the person (who raises the children) and, if different, a guardian of the estate (who manages any assets left to the children).
Keeping Documents Current
Estate planning documents should be reviewed after major life events: marriage, divorce, the birth of a child, the death of a named beneficiary or agent, a significant change in assets, or a move to a new state. California law has specific rules about how life events affect existing documents — for example, divorce automatically revokes certain provisions in a will. Regular review ensures your documents continue to reflect your current wishes and circumstances.
Ready to Put a Plan in Place?
Wagley Law helps families in Lafayette, Lamorinda, and across the SF Bay Area create wills and incapacity documents that protect their loved ones and reflect their wishes. Contact us to schedule a consultation.
Schedule a Consultation