Estate Planning is a wide umbrella that covers multiple aspects of how to plan for your future and your eventual death. Most people think of estate planning as only death planning when related to the legal realm but that simply isn’t the case. Estate planning does include many of those aspects such as a trust, will, health care directives, power of attorney, and avoiding probate court but it also includes things like business succession planning, asset protection, gifting, incapacity and so on. Because each client we meet with has different circumstances with their money, time of life, health issues, etc. each estate plan needs to be carefully crafted to the individual and not just the same exact word for word document that some firms or companies give to each client.
When we meet for estate planning we want to know about your goals and wishes, how your family relationships are, what concerns you have and what things are most important to you. If you are a business owner your estate plan needs to include the business succession plan, who is going to run it and who is going to profit from it or is it to be sold? Not every decision needs to be made or finalized in that first meeting, but it is a chance for us to start the conversation and get things moving in the right direction. The consultation is also a time for you to ask questions so that we can determine if it is a right fit for both of us to move forward.
Just like any plan, an estate plan has to be flexible because your circumstances will change over time. When we for m a new client relationship we want this to be an ongoing and open relationship so that together, we can make sure that we accomplish what is right for you.
It doesn’t matter if your estate is simple or complex, every individual and couple deserves the right to meet with a qualified estate planning attorney to avoid probate court and feel relief of knowing that their wishes will be carried out.
An important part of any estate plan is a trust. There are multiple types of trust out there, but they fall into two main categories, irrevocable or revocable trusts.
The revocable trust is sometimes referred to as a living trust. This is because the trust is flexible, a living document that can be amended while the trustor, person who set up the trust, is still living. The primary reason to set up a revocable trust is to avoid probate court. If you set up this type of trust you usually are also the person managing the assets of the trust as well. We call this person the trustee and they are like a manager of the business. They sign the checks, make the investment decisions, pay the bills etc.
Because a revocable trust becomes the owner of all of your assets, when you die there is nothing in your name and therefore nothing to go through probate court. A trust clearly states where the money or assets go if something happens to you, who is in charge of it and the terms for giving away the money or administering it for someone’s benefit. A revocable or living trust is truly amazing because it allows the most flexibility and control without any negative consequences. It doesn’t even affect your tax status. The hardest part of dealing with a revocable trust is transferring the assets into the name of the trust which is referred to as funding the trust.
Irrevocable Trusts are a more complicated estate planning tool because as the name suggests, this type of trust can’t be revoked or amended. We typically use these types of trusts for asset protection or estate tax planning. In order to get the protection of the irrevocable trust you have to give up some control meaning you aren’t the beneficiary, the trustee or possibly both. Many people have the misconception that why would you ever do an irrevocable trust and give up control. The simple answer to that is one it depends on your circumstance and two, you are actually taking control and preserving your assets instead of leaving it up to chance. We see this a lot with planning for a long term illness and not wanting to spend every penny you own before Medicaid or the VA kicks in to help. With Medicaid Trusts or a VA Trust you can qualify for those benefits without having to spend down every penny you own. I’m not talking about anything illegal here. These are benefits you paid into for years and we just want to help you get that benefit that you are entitled to.
The Last Will and Testament is probably the most famous of all the estate planning documents because it is featured as the focal point in media after a person dies. While we have already mentioned in the Trust section that a trust is better that a will, a will is still a valid part of every estate plan.
If you have not done any planning a will is important because you are making your wishes known. The will does have to go through probate court but at least you are not leaving it up to the state law to determine who will inherit your assets.
The most important reason to do a will is to name a guardian of your minor children and a backup or two. Letting anyone petition the court to say that they want to raise your kids is a scary thought especially when the Judge has a wide discretion of who they can allow to take your kids. You want to consider putting in your will a person who thinks the same way you do. Would treat your kids the same way you would. Lives the same lifestyle as you, including, health, fitness, religious beliefs, work ethic etc. You also want to consider where they live and if they move often. Will they allow your family to visit (good or bad thing). Once again make the decision and don’t leave it in the discretion of the court.
Even with our clients who have trusts to avoid probate we always do a will for them. On top of the guardians of minor children issue, the will acts as a backup to the trust. If you forget to put an asset into the Trust or if you have everything in the trust and then die while you are supposed to get an inheritance then we would be in probate court. While sometimes it can’t be avoided, the will in this instance is what is referred to as a pour-over will. This pour over last will and testament simple says that all of the assets of the estate are to be given over to the trust and distributed according to those terms. This still gives the trust validity, the terms and carried out correctly and because the trust is the only name heir, there still remains some anonymity with the trust never becoming full public record.
The last way in which a will is still relevant is that you can specify what your final burial or cremation wishes are by a document that can be enforced by a judge instead of relying on your family or friends to do what they think is right.
Power of Attorney
The power of attorney or more accurately the asset power of attorney is something that can only be used while you are living. This document gives the named person to act on your behalf for financial matters. A power of attorney can specific, meaning a specific period of time or a specific type of matter such as signing to sell real estate. The power of attorney can be springing, meaning it doesn’t spring into effect until a doctor or two declare you incompetent or it can be general, for everything at any time.
When choosing a power of attorney be very careful to ensure the person is trust worthy. If it is a general power of attorney, they can sign any document for you at any time whether you approve or not. For example, they could go to the bank and empty your account or sell you home without your knowledge. The worst part is, your only recourse is against them. If the bank relies on a valid power of attorney, they can’t be held liable because you gave that individual the power. This is why we like the springing or specific power of attorney because it either places limits or doesn’t take affect until a professional gets involved.
Living Will and Health Care Power of Attorney/Health Care Directive
Just like an asset power of attorney gives authority to act on your financial behalf, a health care power of attorney authorizes an individual to make health care decisions on your behalf. This one does only take affect upon you being unable to make the decisions yourself. This is the document also referred to as a living will or Do Not Resuscitate (DNR). Each state usually has its own form that they like you to use if you are a resident of that state. It can be found online for free by Googling your State Name Health Care Directive.
On the health care power of attorney or living will form there is usually questions or spaces to write how you feel about pulling the plug, organ donation, feeding tube and more. On top of feeling this health care directive out fully and accurately, we encourage our clients to talk with the person they named as the health care power of attorney about what they chose, why they chose it and what the ultimate goal is. This way, no matter what the situation is, the health care power of attorney can make the right choice to accomplish your wishes.