Legal Terms Glossary

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Advance Health Care Directive

The Advance Health Care Directive is a document by which a person may set out his or her directions concerning health care, end-of-life decisions, and related concerns. This form is comprised of three main components: 1) Power of Attorney for Health Care – allowing you to designate an “agent” to make health care decisions on your behalf should you be incapable, such as in a coma; 2) Health Care Directive – allowing you to direct that your health care provider provide, withhold, or withdraw health treatment for yourself under circumstances where your physicians expect you to die within a relatively short period of time; and 3) Additional Directives — granting you options such as organ donation and the ability to give instructions for burial/cremation. (see California Probate Code §4600-4806 for more information)

Community Property

Community Property is any property acquired by either spouse during marriage, except for property acquired by gift or inheritance.  For instance, if one spouse’s friend gives her a gift of $10,000, that would be separate property.  (Same situation if such spouse’s parent died and she inherited money.)  As for community property, each spouse owns an undivided one-half (1/2) interest in the property.  (see California Probate Code §28 for more information)

Medi-Cal Recovery

When a Medi-Cal recipient dies, the state may make an “estate recovery claim” for repayment of certain health care services which the decedent received and were paid for by Medi-Cal. Since January 1, 2017, certain assets are exempt from such a claim, including real property held in a trust (such as a revocable living trust), and property held in a joint tenancy, survivorship and/or life estate arrangement.

Power of Attorney

A General (Financial) Power of Attorney is a document whereby an individual (the “principal”) can grant to another person (the “holder,” “attorney-in-fact,” or simply “agent”) the power to conduct functions, typically of a financial nature, on his or her behalf. A power of attorney is considered “durable” if the authority to conduct functions remains exercisable even if the principal should become incapacitated (CPC §4124). In California the most commonly used general power of attorney is a Uniform Statutory Form Power of Attorney.  (see California Probate Code §4401-4465 for more information)

Power of Attorney for Healthcare

A Power of Attorney for Health Care allows you to designate a person (and any potential “backups”) as your agent, to make health care decisions on your behalf should you be incapable, such as in a coma. It is normally one of three parts that comprise a California Advance Health Care Directive. (see California Probate Code §4680-4691 for more information)

Probate Fees

Probate Fees are the attorney and executor fees allowed by statute in a court-supervised administration (i.e., probate) of one’s estate. While there may be cause to request extraordinary fees from the court, the current fee structure is as follows:
(1) Four percent on the first one hundred thousand dollars ($100,000).
(2) Three percent on the next one hundred thousand dollars ($100,000).
(3) Two percent on the next eight hundred thousand dollars ($800,000).
(4) One percent on the next nine million dollars ($9,000,000).
(5) One-half of one percent on the next fifteen million dollars ($15,000,000).
(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

For example, Probate Fees for the administration of an estate with a hypothetical value of $900,000:
(1) 4% on the first $100,000: $ 4,000.00
(2) 3% on the next $100,000: $ 3,000.00
(3) 2% on the next $700,000: $14,000.00
Total: $21,000.00

(see California Probate Code §10800-10850 for more information)

Springing Power of Attorney

A power of attorney that “springs” into effect once a specified event or contingency has occurred, in accordance with the terms of the power of attorney document. For example, you could create a power of attorney that does not become effective until you take your next vacation or business trip to a foreign country. (see California Probate Code §4030; 4129 for more information)

Trust

A trust is a relationship, typically spelled-out in a written document, called a “trust agreement” or “declaration of trust,” whereby you as the creator of the trust (the “trustor”) transfer your property into the managerial hands of a “trustee” (who is typically yourself while you are living) for the benefit of your “beneficiaries” (typically yourself while you are alive, and your spouse and/or your children upon your death).  (see California Probate Code §15000-15805 for more information)

Will

A will is a legally binding document that, upon the will creator’s (the “testator’s”) death, governs the disposition of the testator’s assets which have not been titled in a trust or devised by another probate avoiding instrument.  A will is revocable or amendable during the testator’s lifetime. (see California Probate Code §6100-6390 for more information)