Estate Planning 101
October is National Estate Planning month — what documents do you need to protect yourself, your family and your assets?
- Last Will & Testament – your Will disposes of your assets at your death. When preparing your Will you will determine who will receive your assets, how they will receive those assets (e.g. should you create trusts for your children or disabled/incapacitated beneficiaries), and decide who will act as your Executor and Trustee. You may also need to consider trust planning for tax purposes as well.
- Revocable Living Trust – if you own out of state real property, are planning for incapacity, are disinheriting children or spouses or have privacy concerns, you may need a Revocable Living Trust as your main estate planning document. The same planning that is done in a Will can be done in a Revocable Living Trust. If you choose a Revocable Living Trust as your dispositive document for planning purposes, you still need a Will to capture any assets that may be left out of the trust at your death. This type of Will is referred to as a pour-over Will.
- Appointment of Guardian for Minor Children – to head off any disagreements (or potential litigation) about who will care for your minor children in the event of your death, it is important to execute an appointment of guardian for your minor children while you are living. Courts typically will adhere to your choice as long as the person(s) you appoint has capacity, has never been convicted of a felony, does not have a financial interest that would be adverse to your children and the appointment is in the best interest of your children.
- Durable Power of Attorney for Financial Matters – a durable power of attorney allows you to appoint someone to act on your behalf in a wide array of financial matters. You may make this document effective immediately upon signing or effective only at your disability or incapacity as certified by a physician. The usefulness of this document cannot be understated. For instance, you may be unavailable and need your spouse to deal with a financial account that he or she does not have access to or sign for you at a closing on a house.
- Medical Power of Attorney and HIPAA Release – a medical power of attorney allows you to designate an agent to make medical decisions for you when you are unable to do so yourself. Under this power of attorney, your agent works with your physician to make treatment decisions and to provide consent for treatment and care. The HIPAA Release allows your agent to access all of your medical records in order to fully understand your condition.
- Directive to Physicians, Family and Surrogates (aka “Living Will”) – you may take some medical decisions out of the hands of your agent under a medical power of attorney by executing a Living Will. Specifically, a Living Will allows you to choose whether you want all available life support or palliative care only in instances where a physician has certified that you have a terminal illness or irreversible condition.
- Declaration of Guardian in Advance of Need – there may come a time when you need a legal guardian appointed to act on your behalf. The Declaration of Guardian in Advance of Need allows you to name who you would like to serve in that instance. You may also exclude individuals from serving as your legal guardian. While a court proceeding to declare you incapacitated is still required, the courts typically will rely on your choice as evidenced in this document, unless the person you have nominated is disqualified from serving.