Wills, Trusts & Estate Planning
Some clients will decide on the will-based, traditional estate plan, opting against the planning, titling and funding necessary to establish a trust. A Will (formerly referred to as Last Will and Testament) is a legal document requiring formal execution that disposes of property after death. Using the traditional estate planning, clients own their assets, individually or jointly depending on their circumstances, and their Will would direct where their assets (without prior beneficiary designation) would go upon their death. You can think of a Will as a type of map instructing how to get from Point A (prior to death when you own the assets), to Point B (after death when your beneficiaries come to own the assets).
Before clients make their decision regarding whether or not the will-based plan is for them, we discuss the probate process. Using traditional estate planning, when the client owns assets in their name with no beneficiary designation at the time of their death, the estate would be required to go through the probate process. This is a legal process requiring petitions to be filed with the Court, notice to be given to creditors, a certain waiting period while creditors can file claims, after which, if proper, those creditor claims would be paid and then the assets would ultimately be distributed pursuant to the wishes set forth in the Will. For some, the traditional estate plan will best fit their needs.
We also provide our traditional estate plan clients with:
- Durable Power of Attorney is a legal document that once properly executed allows someone who you have appointed to act on your behalf when you no longer have the capacity, often created to deal with property or health care decisions;
- Living Will is an Advance Medical Directive that is effective while the you are alive. A Living Will deals in particular with life-prolonging and end-of-life procedures (the degree of medical intervention and life sustaining support). In a Living Will you express your wishes for when you become incapacitated. Medical care, the degree of medical intervention and life sustaining support are typically expressed in a Living Will;
- Health Care Surrogate Designation is another form of Advance Medical Directive wherein you appoint someone to make health care decisions for you when you become unable to make them for yourself; and
- HIPAA Authorizations are medical authorizations necessary because of privacy rules requiring doctors and medical providers to keep your health information confidential. If you become incapacitated, and if you have signed these authorizations, your loved ones or those you have selected will be allowed to obtain copies of your medical records. This could become critical under certain medical circumstances, and the record-obtaining process is made easier with signed medical authorizations.
A trust is a legal arrangement that provides for the ownership, management and distribution of property. Think of a trust as a “bucket” into which you place your property. When you “fund” the trust, you place some or all of your property in the name of the trust … like placing the items in a bucket. The text of the trust is your set of detailed instructions that include such things as: what’s in your bucket; who manages and takes care of what’s in your bucket; who will get to benefit from what’s in your bucket; how often can the Trustee take from the bucket; what can be removed from the bucket; and why removals from the bucket are allowed.
You, the one placing the property into the trust, are known as the Grantor of the trust. The person who oversees the property in the trust is the Trustee, and the person(s) who receives the benefit of the property held in the trust is known as the Beneficiary. When your trust is created, there is a good chance you will be Grantor, Trustee and Beneficiary. If or when you become incapacitated, you will have named a Successor Trustee who will assume overseeing the property in your trust.
An irrevocable trust is a trust with terms and provisions that cannot be changed by the Grantor.
A revocable trust, which is a very common estate plan, allows the Grantor to amend the terms of the trust and/or take back title of the property in the trust at any time.
Many people believe that estate planning is only for people who are particularly wealthy, have elaborate schemes in mind for passing their money to their heirs, or for people who are acutely ill and contemplating their death. This could not be farther from the truth!
Estate planning is for every husband, wife, mother, father, grandparent, business owner, professional, or anyone else who has someone they care about, are concerned about providing responsibly for their own well being and for the well being of those they love, and for anyone who seeks to make a difference in the lives of others after they’re gone. Estate planning is not ‘death planning’; it’s ‘life planning’, and an essential and rewarding process for individuals and families who engage in it.
When done properly, estate planning requires that a highly trained individual lead you through one or more in-depth meetings to uncover your hopes, fears, and expectations for yourself and for those who are most important to you. This process almost always requires the preparation of several sophisticated legal documents, but those documents themselves are not ‘estate planning.’ Planning is a process, represented by a complete strategy that is properly documented and maintained by a professional who has taken the time to get to know you, and who is committed to continuing to serve you.