Estate planning is a process designed to help you manage and preserve your assets while you are alive, and to conserve and control their distribution after your death, all in accordance with your goals and objectives. As with financial planning, what estate planning means to you specifically will depend many factors including but not limited to: age, health, wealth, lifestyle, life stage, goals, etc.
To help you understand what estate planning means to you, the following sections address five estate planning documents you may need, regardless of your age, health, or wealth, as well as some estate planning needs that are common among some very broad groups of individuals. Think of these suggestions as simply a point in the right direction, and then seek professional estate planning advice to implement the right plan for you.
Key Estate Planning Documents
- Advanced Medical Directives
- Durable Power of Attorney
- Living “Revocable” Trust
- Letter of Instruction
The main purpose of a will is to disburse property to heirs after your death. If you don’t leave a will, your property will be disbursed according to state law, which might not be what you prefer. During the will creation process, you can name an executor who will manage and settle your estate (otherwise this will be done by the court). You can also name a legal guardian for minor children or dependents with special needs.
Keep in mind that a will is a legal document and the courts are very reluctant to overturn any provisions within it. Therefore, it is crucial that your will be well articulated and properly executed under your state’s law. Additionally, it is essential to keep your will up to date, as life events dictate or state law changes.
In your will, you may nominate a guardian for your children. In naming a guardian for your children, that person will be fully responsible for care should anything happen, including the following:
- Food, clothing and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs
A guardian may be replaced at any time prior to death or disability, simply by signing a new will and nominating a new guardian. Similar to all other provisions of a will, the probate court has final approval over the choice of guardian, although such a decision is unlikely to be overturned.
Advanced Medical Directives
In the event you cannot express your wishes yourself, advanced medical directives let others know of certain medical treatment you may or may not want. If you do not have advanced medical directives, medical professionals must prolong your life using artificial means, if necessary. With today’s technology, physicians can sustain patients for days or weeks, if not months or years.
These advanced medical directives, however, differ from state to state. You may find that certain states only allow one, two or three types of the available medical directives: Living Wills, Durable Power of Attorney for Health Care, or Do Not Resuscitate Order (DNR).
Living Wills allow you to approve or decline certain types of medical care in result of either terminal injury or illness, in most cases.
The second type of medical directive, a durable power of attorney for health care (also known as a health care proxy) allows you to appoint a representative to make medical decisions for you.
The third type of advanced medical directive is known as a Do Not Resuscitate order (DNR). A DNR specifies whether or not a medical professional should perform CPR if you go into cardiac arrest.
Durable Power of Attorney (DPOA)
A durable power of attorney (DPOA) helps protect your property in the event you become physically or mentally incompetent to handle financial matters. When instituting a DPOA, you are authorizing someone else to act on your behalf to do things such as pay everyday expenses, file taxes, watch over your investments, and other essential financial matters. If no one is designated to look over your financial affairs, you run the risk of wasted benefits, potential loss or even abuse of property.
A Living Trust, also known as a Revocable Trust or an Inter Vivos Trust, is a separate legal entity meant to function while you’re alive. During your lifetime, you maintain control over the property as well as the ability to change trust terms, transfer property in and out of the trust or to terminate the trust altogether.
The primary function of a living trust is to avoid probate. Depending on your situation and state’s laws, the probate process may vary in complexity, length in time, as well as cost. Transferring property through a living trust not only avoids the probate process, but insures privacy of the descendant and his/her family. Property that passes through probate (e.g., will, inventory) will become public record. Generally, property titled in the name of the trust does not.
Letter of Instruction
A letter of instruction (also called a testamentary letter or side letter) is an informal, non-legal document that generally accompanies your will. This document remains private unlike your will and specifies exactly what is dictated in your will. This can be most helpful when left in the hands of your family members and your executor. A letter of instruction is by no means a substitute for a will. Any directions are purely suggestions and are not binding.
In conclusion, each person’s unique needs require different considerations and estate planning recommendations. While the previous are mere suggestions and we recommend seeking the advice of an estate planning professional to help determine the best documents for your personal situation, our team of professionals can help you begin this critical process. Contact us to learn more.