Estate Planning Strategies
Regardless of your current financial situation, it's wise to consider estate planning. So what does estate planning mean? It means preparing documents that will manage your assets in the event of your incapacitation or death. It includes settling estate taxes and the bequest of assets to heirs. Most estate plans are set up with the professional help of an estate planning attorney. While we recommend finding a lawyer for estate planning, here we will discuss some estate planning tips to give you a basic understanding. Most of the problems that typically arise with death and incapacity of a close family member can be avoided with an estate planning package, including the following documents:
- Revocable Trust
- Financial Power of Attorney
- Health Care Power of Attorney
- Living Will (sometimes referred to as a Directive to Physicians)
- Documentation needed to transfer assets to trust
Estate Planning and Wills
When someone dies, the probate process, administered through the state courts, is necessary in order to transfer control, and eventually ownership, of their assets to the designated heirs. Because the deceased cannot sign his or her own papers to transfer assets, the probate process is necessary to grant the legal right to take control of them. With real estate, the probate court will receive the will and then approve the appointment of the estate's personal representative. The representative is then able to sell or otherwise transfer the real estate. Without probate court approval, the property cannot be transferred.
Estate Planning and Trusts
To avoid the probate process, most people will choose to work with an estate planning attorney to create a revocable trust. This trust is much like a will, but a trust does not die with its owner. It merely gets a new trustee. So the designated trustee may take over the trust and sell or transfer the property without going through the probate court process. The same rules apply to all other assets, such as investment and bank accounts. A trust is much more efficient than a will, does not cost all that much more, and saves the heir the very high costs of going through probate. A trust allows for the estate to be retained for minor children's benefit until they are older and more capable of handling the inheritance. Most young couples with children do not have much wealth, but may have life insurance which can be directed to a Revocable Trust to ensure that a trusted person can administer those necessary life insurance proceeds to aid the children as they grow up, get an education, and enter the workforce. With life insurance, we usually recommend the spouse as the primary beneficiary and the trust as the secondary beneficiary of the life insurance proceeds. A revocable trust also makes it easier for the spouse or children to gain control and access to a person's estate if a person becomes incapacitated. The trust will allow the designated successor trustee to manage the finances to be sure the mortgage and utilities are paid, and so forth. In most cases, the trust, combined with powers of attorney, will make a guardianship unnecessary, thereby sparing the family heartache and expense. An experienced estate planning attorney can help you get the documents for a Revocable Trust put into place quickly and correctly.
Financial Power of Attorney
When you create your trust or will, your attorney will typically help prepare a financial and health care power of attorney. This will authorize your designated power of attorney, such as your spouse or child, to act in your name for legal and financial matters.
Health Care Power of Attorney & Living Will
The health care power of attorney and living will are vital when a person cannot make rational health care decisions for themselves. For example, most people wish to make it clear in their living will that they would not want to be left on life support indefinitely if they are in a coma or terminal condition. The health care power of attorney gives a trusted person power to make important life or death decisions for you if you cannot speak for yourself.
For most people, the standard estate planning documents described above will be sufficient. Here are some other possibilities to consider: Once the trust is created, make sure your real estate, bank accounts, and other assets are titled in the name of the trust. Your attorney and banker can assist you in this process. With life insurance and retirement accounts, make sure the proper persons are named as beneficiaries. Typically the spouse is named as the primary beneficiary, and the trust is often named as the secondary beneficiary. This way, the life insurance or retirement account will pass to the spouse without probate. It is also advisable for children to execute power of attorney documents so the parent can act on the child's behalf if the child should be injured or incapacitated.
Some people are concerned about potential lawsuits. Insurance is vital, but sometimes it is wise to insure the asset itself, not just against a potential risk. That way, if a particular risk is not covered, the asset will be protected from a lawsuit.
Estate Planning Cost and Fees
The cost of your estate plan will vary with the documents you need and the complexity of each document. A good estate planning attorney will help you prepare a strategy to make the tools work together. Keep in mind that estate planning fees are not just a function of the time your attorney spends drafting documents. Good estate planning attorneys use their skills, knowledge, and expertise to construct a holistic plan that will help you accomplish your unique estate planning goals.
If you have questions or would like to discuss these estate planning strategies with an experienced attorney, call or email W. David Keast today to schedule a free consultation in one of our offices or a virtual meeting.