INDIVIDUAL ESTATE PLANNING OVERVIEW Estate planning is arranging for the future distribution of your wealth. An essential part of estate planning is creating documents that outline your wishes for distributing your assets after you have passed away. If you have not made any provisions for the distribution of your estate before you die, the estate will be distributed according to his state's "intestate succession" statutes which provide for the distribution of the estate to the spouse and relatives in an order established by state law. This method is the default means of estate distribution and may not distribute your estate according to your wishes. There are several tools available to you to ensure that your estate is distributed according to your wishes. These include will, trusts, durable powers of attorney, health care powers of attorney, and living wills. Though often overlooked or delayed in favor of more immediate concerns, a comprehensive estate plan can resolve a number of legal questions that arise whenever a person dies: What is the state of their financial affairs? What real and personal property do they own? Who receives what assets? Does a personal guardian need to be appointed to care for minor children? How much tax will need to be paid in order to transfer property ownership? What funeral arrangements are appropriate? An experienced estate planning attorney can explain all options available to you in meeting your estate planning goals and fulfilling the needs of your surviving family members, whether you need to revise an existing will or create an entirely new comprehensive estate plan. WILLS Traditionally, estate planning has involved the creation of a will. A will is a legally binding document that addresses how your assets will be distributed at your death and also names an executor who will assist with the administration of your estate. Settlement of your estate may be supervised by the probate court. This process can range between 6 months for a simple estate to 1-2 years for more complex estates. A will is a flexible tool that can be changed at any time as long as you are mentally competent. In addition to naming distribution of the estate, your will can:
Designate a trust to be established for family members after assets go through probate. (This type of trust is known as a testamentary trust but is not to be confused with a living trust.) Nominate a guardian. Direct how debts, taxes and expenses are to be paid.
Some of the advantages of a will are: Disputes can be settled through the probate court. A will is generally cheaper to prepare than a trust. Probate can reduce the time allowed for creditors to make claims against the estate. Some the disadvantages of a will are: Your financial records become accessible to the public. Probate can take up to 2 years to settle. Probate and legal fees can cost anywhere from 3% to 10% of your gross estate. If you own property in more than one state, then probate needs to be held in each state. A will does not make provisions should you become incapacitated (you need a separate durable power of attorney). LIVING TRUSTS A living trust, also known as a revocable living trust, family trust or an inter vivos trust is a legal document that holds title or ownership to your real property and assets. When you create a revocable living trust you transfer ownership of your assets to the trust. This is typically called "funding." When you transfer title you do not relinquish any control of your assets. The living trust, in many ways, appears similar to a will. It includes the details and instructions for how you want your estate to be distributed at your death. However, unlike a will, a properly funded trust:
Does not go through probate. Prevents the courts from controlling your assets at incapacity. Gives you control over the assets you leave to your minor children or grandchildren. If you are incapacitated, a successor trustee can handle your financial affairs without a court appointed guardian or conservator. If the beneficiaries of your trust are minor children the trust can continue to hold the assets until they reach an appropriate age for distribution.. If you own real property in more than one state you avoid having to undergo multiple probate proceedings.
Trusts are generally more difficult to contest than a traditional will. To invalidate a will you must either prove it was signed under duress or that the maker was incompetent on the day it was signed. To invalidate a trust it must be proven that it was invalid on the day it was signed as well as every day that it was in existence thereafter. When a will is contested the assets are frozen and they cannot be distributed until the claim is resolved. Assets placed in a living trust are not frozen pending the outcome of a
legal challenge. Those wishing to contest the trust must file suit against each of the beneficiaries; in the meantime the assets in the trust can be distributed. FINANCIAL DURABLE POWERS OF ATTORNEY If you are incapacitated, this document gives another person full legal authority to sign your name on your behalf and manage your finances for all assets not controlled by a trust. The financial durable power of attorney names an attorney-in-fact to make decisions regarding such assets. HEALTH CARE POWERS OF ATTORNEY The health care durable power of attorney applies in all situations in which you are unable to make health care decisions for yourself. The health care durable power of attorney you create becomes effective only upon your incapacity. It gives broad powers of health care decisions to whomever you have named as your attorney-in-fact. In addition, unless you direct otherwise, this document gives your attorney-in-fact the power after you die to (1) authorize an autopsy; (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes; and (3) direct the disposition of your remains. No one has the legal authority to act for a family member if that individual is unconscious or incompetent unless they have power of attorney to do so. If no one has been appointed as your attorney-in-fact, it is up to the courts to make decisions on your behalf. LIVING WILLS A living will is a document that expresses a person's preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques. As these documents became more popular and widely available under local laws, they have included other health care concerns such as tube feeding, resuscitation, and organ donation. While living wills are allowed in all states, they sometimes must follow certain formalities to be effective. If valid, a living will binds health care providers to its instructions.