Written Statements

Generally, a written statement made by the decedent controls so long as it is clear. Specifically, California Health and Safety Code  §7100.1 provides:

(a)  A decedent, prior to death, may direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided. Unless there is a statement to the contrary that is signed and dated by the decedent, the directions may not be altered, changed, or otherwise amended in any material way, except as may be required by law, and shall be faithfully carried out upon his or her death, provided both of the following requirements are met: (1) the directions set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and, (2) arrangements for payment through trusts, insurance, commitments by others, or any other effective and binding means, have been made, so as to preclude the payment of any funds by the survivor or survivors of the deceased that might otherwise retain the right to control the disposition.

(b)  In the event arrangements for only one of either the cost of interment or the cost of the funeral goods and services are made pursuant to this section, the remaining wishes of the decedent shall be carried out only to the extent that the decedent has sufficient assets to do so, unless the person or persons that otherwise have the right to control the disposition and arrange for funeral goods and services agree to assume the cost. All other provisions of the directions shall be carried out.

(c)  If the directions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.

No Written Statement

However, If there is no written statement, then under California Health and Safety Code §7100(a)(1)-(9) the duty to control the disposition of remains, location of and conditions of internment, and arrangement for funeral goods and services falls upon the following individuals in the order below: 

(1) Agent under the power of attorney who has the right and duty of disposition

(2) Competent surviving spouse

(3) Competent surviving adult child or children

(4) Competent surviving parent or parents

(5) Competent surviving sibling or siblings

(6) Competent surviving relevative or relatives in the next degrees of kinship

(7) Conservator of the decedent when the decedent has sufficient assets

(8) Conservator of the estate when the decedent has sufficient assets

(9) Public administrator when the decedemt has sufficient assets

Keep in mind, however, that if the decedent died while on duty for the Armed Forces of the United States and used a United States Department of Defense Record of Emergency Data, DD Form 93, this takes prioirty. 

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Generally, cremated (or hydrolyzed) remains can be scattered anywhere that isn't explicitly prohibited, so long as 

(1) The remains are not distinguishable to the public

(2) Are not in a container, and 

(3) The person who has control over the remains has obtained written permission of the property owner or governing agency to scatter on the property.

See California Health and Safety Code §7116(a). 

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The coronavirus pandemic is a good reminder of the importance of having your estate plan prepared. Here are the basic documents you should have in the event you become incapacitated or pass away.

Durable Power of Attorney

The agent that you select under a durable power of attorney can generally take care of your financial affairs if you are no longer able to act for yourself. The agent may be able to transact with financial institutions on your behalf as well as to sign legal paperwork or file your taxes.

Advance Health Care Directive

Like the Durable Power of Attorney, the Advance Health Care Directive allows you to select an agent to make health care decisions for you. The agent can also speak to medical professionals on your behalf. Due to privacy laws surrounding medical information, this document may be the only way anyone can get information about your health situation.

Revocable Living Trust

Most estate plans today utilize a revocable living trust to avoid the various hurdles of the costly and time-consuming probate process at the time of your death. The revocable living trust also has the added benefit of providing a plan for the management of your trust assets in the event that you become incapacitated. The key to utilizing a revocable trust effectively is to ensure that appropriate assets have been properly transferred to your trust.

Will

For most people, the revocable living trust is the primary document that describes how their assets are to be distributed. However, Wills are still prepared as part of a complete estate plan and are usually where guardians for minor children are nominated. Typically, clients who have a revocable living trust also have an accompanying “pour-over” Will that states that any assets that the client may have forgotten to put into the trust while they were alive be put into the trust after their death. The person in charge of carrying out the wishes in your Will is known as the Executor, and is often the same person as the successor Trustee of your revocable living trust.

Transfer / Title Documentation

If you have a revocable trust as part of your estate plan, you should also make sure that any bank and investment accounts, real estate, or any other asset (other than retirement accounts and life insurance policies) are re-titled in the name of your revocable living trust. This will ensure that those assets will be distributed in accordance with your trust rather than your Will (the latter of which may require a probate proceeding).

Beneficiary Designation Forms

Some assets are only distributed by way of beneficiary designation forms. Typically, life insurance and retirement accounts (e.g., IRAs, 401ks, SEP-IRAs, etc.) fall into this category. It is therefore critical that you review these from time to time to make sure that you’ve named the appropriate beneficiaries.

Asset List

This is rarely mentioned, but practically speaking, simply putting together a list of your assets can be immensely helpful to your Trustee, Executor, or beneficiaries. Often, when a person dies, his or her family members do not know where to look for the assets. A simple list with information such as the address of any real estate that you own, the places where you have banking or investment accounts, or the legal names of the businesses that you own can greatly reduce the burden faced by your loved ones.

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It is not often that clients own stocks held in their individual names. Usually these stocks will be held through one or more brokerage or investment accounts owned by the individual. Transferring stocks held in one's name to a revocable living trust requires dealing with the so-called "transfer agent," which is a time-consuming process and entails additional documents such as an Affidavit of Domicile and Medallion Signature Guarantee. 

Because of the additional steps required to transfer shares of stock held individually, it is well worth it to consider consolidating these individual stocks into a brokerage account. By doing so, one is able to deal directly with a financial institution, which is generally more responsive than a stock transfer agent. Moreover, holding the stocks through a brokerage account eliminates the risk of losing stock certificates.

The financial institution holding the stock certificates also makes it much easier for you to transfer the stock in the future, should you choose to do so.