A large number of childless couples believe that their need for Estate Planning is pale in comparison to the need of couples with children, as they will not be leaving minors behind in the event of an untimely death or incapacity. This belief can result in childless couples failing to plan. The failure to plan is not a good idea. If incapacity strikes and there are not powers of attorney in place, the state of California will likely require your family to file for a conservatorship, asking the court to appoint a conservator to make financial and medical decisions on your behalf. This process is time-consuming, public, stressful on the family, and costly. If your spouse is still alive and healthy, it's likely the court will appoint your spouse to act on your behalf, but there are no guarantees. It is much easier to be proactive now, and put a power of attorney in place along with an advanced healthcare directive, enabling your chosen agents to speak for you from a financial and medical standpoint in event that you are unable to speak for yourself in the future.
In terms of distributing property, Estate Planning for childless couples is of huge importance and oftentimes can require more direct thought than families with children. For a childless couple who does not have an estate plan, per intestacy laws in the state of California, upon the death of the first spouse, the surviving spouse will receive outright all of the property. Therefore, the first to die spouse’s family - parents, brothers, sisters, nieces, nephews will be specifically, perhaps unintentionally, disinherited. In essence, without planning, the first to die’s family will receive nothing.
More often than not, this is not what people have in mind for their estate plan. Sometimes couples will get put in place a will, leaving everything to each other, and then addressing who inherits what is left after the death of the second spouse. This is better than nothing, but usually not the best option. A will based estate plan will still go through probate which will diminish any inheritance.
Probate is public, costly and time-consuming, but with proper planning, can be avoided altogether. A revocable living trust can provide an estate plan that can avoid the court altogether and not require a probate. This saves time and expenses after death. A trust can also provide tax planning options, protection for beneficiaries, management of your assets during incapacity, and much more.
Another thing to keep in mind — as long as the surviving spouse still has capacity, his or her will can always be amended after the death of the first spouse. If this is not something you are comfortable with, consider a trust. There are options to allow the assets of the first spouse to die to be used for the benefit of the surviving spouse, but lock in the beneficiaries upon the death of the surviving spouse.
As outlined above, Estate Planning is highly important for for all couples, with and without children. By putting in place an estate plan today, you are ensuring peace of mind for the future.