What steps you need to take to incorporate your small business into your estate plan will depend largely on the type of legal entity you formed when you started the business. From a legal standpoint, there are different results upon the death of an owner when the business is a corporation than when it is a partnership, for example. As a partner in a business, the business may die with you or may not, depending on your partnership agreement. A corporation, however, always survives the death of a shareholder. If you operate a sole proprietorship, the business will naturally die with you since you are the only owner absent a well thought out continuity plan that provides for the continuation of the business.

Regardless of which type of legal entity you formed for your business, if you have a financial interest in the business then you undoubtedly want that financial interest to be passed down to your loved ones or family members upon your death. By consulting with your estate planning attorney and incorporating your small business into your estate plan, you can rest assured that your wishes with regard to the business will be followed upon your death.

• Willingness to Serve: This may seem an obvious consideration, yet many people fail to take the time to sit down with the intended trustee, explain the position, and inquire if the person is willing to serve in the position.
• Location of Trust Assets and Beneficiaries: For trusts that include tangible assets such as real property, selecting a trustee who is located near the assets allows the trustee to more easily manage the assets. Proximity to the beneficiaries can also facilitate communication between the trustee and the beneficiaries.
• Trustee Discretion: If your trust provides for a significant amount of discretion on the part of the trustee, be certain to appoint a trustee who has the courage and capability to make sound decisions and use good judgment.
• Relationship of the Trustee to the Beneficiaries: Choosing a close family member often seems the natural choice for a trustee; however, if the close family member also has a relationship with a beneficiary, that opens the door for a conflict of interest at some point in the future, which may not be in the best interest of your trust purpose.  Also, a family-member trustee may be resented by a beneficiary who must be treated differently.
• Financial Ability and Experience: Your trust may not require the trustee to have an extensive background in finance. If, however, your trust is complex, or includes significant assets, then choose a trustee with the proper background, abilities and experience.

• Spouse or Partner: Just as each marriage or partnership is unique, the way in which each couple handles estate plans is also unique. In general, however, if you share children with your spouse or partner, or are the owners of jointly held assets, you may wish to consult with each other prior to creating an estate plan. From a practical standpoint, creating separate estate plans under these circumstances can be counter-productive. If, however, you share no assets or children, then the decision to divulge your estate plans is a purely emotional decision.
• Trustee/Executor/Guardian: While there is no rule requiring you to discuss your plan to appoint someone to one of these positions, it may be a mistake not to do so. Each of these positions requires the appointee to commit to a role that carries with it substantial responsibilities. You want to be certain that the intended appointee is both willing and able to carry out his or her duties when the time comes to do so.
• Beneficiaries: Discussing the details of your estate plan with any or all of the beneficiaries can be a tricky proposition. On the one hand, it allows them to make plans and allows for no surprises. On the other hand, the old saying “You can’t please all of the people, all of the time” applies here. Revealing the details to beneficiaries could lead to (a) disappointment and strained relations now, or (b) disappointment later if you make changes among beneficiaries.  If someone is likely to be unhappy with the details it may be prudent to keep them private. After all, privacy is one of the advantages of preparing a trust.  This area is the most personal and should only be revealed after careful thought and consideration

• She is low functioning or mentally challenged to the point that she cannot make decisions for herself
• She has a mental illness that impairs her ability to make basic decisions
• She is unable to make medical decisions or fails to follow through with medical treatment
• She has a physical condition that impairs her ability to care for herself
• She is homeless or at risk for being homeless as a result of her inability to care for herself
• She has a drug or alcohol addiction that impairs her ability to make decisions
• She is unable to handle her money and is being taken advantage of as a result
• She is losing assets
• She has mounting bills that have not been paid due to her inability to handle her money

Remember that only a court can make the decision that a conservator is warranted. Simply making bad decisions or being reckless with money is not enough to warrant a conservator. If you are appointed as conservator, the decisions you can make will depend on the type of conservatorship that the court ordered.

A recent marriage generally calls for an update. If you wish your new spouse to receive money, assets or specific gifts upon your death, you should include him or her in your Will or Trust. Although some states allow a spouse to receive assets regardless of being mentioned in the Will or Trust, don’t count on this provision. Your spouse may receive less than you intended, you may move to another state from the state where you originally executed the Will or Trust, or the law could change.

For opposing reasons, divorce also warrants a Will or Trust update. Unless you want your now ex-spouse to receive assets from your estate upon your death, you will need to remove his or her name as a beneficiary from your Will or Trust.

The birth or adoption of a child or grandchild should also cause you to update your Will or Trust. Naming each child or grandchild by name reduces the possibility of future litigation challenging the legitimacy of an heir or the intentions of the maker of the Will or Trust.

Your retirement plan and your estate plan go hand in hand,  given the purpose of each plan. Both plans are concerned with money and assets. Your retirement plan looks at how best to use your assets to comfortably fund your golden years. Your estate plan has as its primary goal the disposition of your  assets upon your death or incapacity. The more assets that are needed to fund your retirement plan, the less that will be available to become part of your estate plan. Because of the relationship between the two plans, it is best to work on them together to ensure that they do not conflict.

A change in one plan often requires a change in the other plan as well. To illustrate this concept, imagine that you have an investment account that is earmarked for use in your retirement plan and therefore you have not specifically incorporated it into your estate plan. A few years down the road, however, it turns out that your investments have produced a yield considerably higher than initially expected, and as a result you do not need all of the funds in the account for your retirement. This change in your retirement plan should prompt you to re-examine your estate plan.

A conservatorship of the person allows the conservator to make personal decisions for the conservatee such as where he or she will live and decisions regarding health care, transportation, meals and personal hygiene. A conservatorship of the estate gives the conservator control over the finances of the conservatee. A conservator of the estate may be able to take control of asset and income, pay bills, invest income and generally manage the finances of the conservatee.

A person may petition to be both a conservator of the person and a conservator of the estate. In order to seek conservatorship, a petition must be filed with the court. After filing the petition, notice must be given to all required individuals and agencies, including the proposed conservatee. A court investigator will then complete an investigation after which the court will conduct a hearing. The court will decide whether or not the proposed conservatee is actually in need of the protection of a conservatorship and, if so, whether you qualify to be the conservator. If you are appointed as a conservator, the court will then continue to supervise all your duties, and in California the conservatorship  must be renewed every two years. The process is long and complicated. Consult with your elder law attorney.

If you die and leave behind a valid Last Will and Testament, you are said to have died “testate.” Conversely, if you die without leaving behind a Will you are said to have died “intestate.” When a valid Will was executed by the decedent, the terms of the Will dictate how the decedent’s assets are to be disposed of upon his or her death. When a valid Will was not left behind, the state laws of intestate succession will determine how the decedent’s estate assets are disposed of upon his or her death. Intestate succession laws will also apply in the event that a valid Will fails to fully dispose of all the decedent’s assets.

Intestate succession laws typically require a court to first determine who the legal heirs are to the estate. Although this may vary by state, heirs generally include your spouse, children, grandchildren and other blood relatives. Once the heirs are determined by the court, the property will be transferred to the heirs according to the laws of the state. The apportionment of the assets will depend on the state; however, most states look first to the spouse and issue, or children.   In California all community property passes to the surviving spouse.  However, separate property is divided between the spouse and children.

As we age, both our physical and mental conditions deteriorate. In some cases, an individual deteriorates to the point where he or she is unable to complete simple daily tasks such as getting dressed, or to the point where simple decisions cannot be made safely. In either case, the individual may be at risk of harm that requires legal intervention. As a loved one, you may need to seek guardianship or conservatorship that will allow you to legally make decisions for your loved one.

Sadly, abuse and neglect of the elderly are more prevalent than many people realize in America. As a response to the increased awareness of elder abuse and neglect, most states have passed legislation directed at the abuse and neglect of the elderly. If you are concerned that an elderly loved one has been the victim of physical, mental, financial or emotional abuse, consult with an elder law attorney to determine what legal options you have to help your loved one.

An advance directive, also referred to as a living will or health care directive, is a legal document that is recognized by the majority of states. Basically, an advance directive allows you to designate someone who will have the legal authority to make health care decisions on your behalf in the event you become incapacitated due to a mental or physical condition that prevents you from making those decisions yourself. Although state laws will vary somewhat, most states also allow you to indicate your preference with regard to certain types of medical treatment such as the use of life-sustaining measures or blood transfusions. If you do not have an advanced directive in place, your spouse/child/parent will need to seek court approval in most states in order to make decisions on your behalf.

The beauty of an advance health care directive is that it is generally active until you choose to revoke it, meaning that once you have executed one, you do not have to worry from that point on about who will make health care or life-altering decisions for you in the event of your incapacity.