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Estate Planning:
Wills, Trusts, Powers of Attorney

Estate Planning may not be a pleasant thought for many people. However, it is critically important for your loved ones that you plan for the expected -- and the unexpected. So as to guide you through the process we have prepared a list of items to consider.

  1. Will
    1. Financial Issues
      1. Your Will affects only those assets that do not already have a “direction” attached to them. For example, your life insurance, retirement survivor benefits and similar assets already have beneficiaries designated. Your Will does not affect those designations.
      2. For most cases, we do not need to know what specific assets you own unless you intend to give that asset to a specific beneficiary. However, in larger estates, there may be tax consequences that need to be considered. In those situations, we will ask you for more details so that we can help minimize the tax effect upon you, your estate, and your beneficiaries. Normally, people who have multiple beneficiaries will simply list a percentage of the estate that is to go to each. (For example, “I give all my property to my surviving children in equal shares.”)
    2. Family Issues
      1. For most people with minor children, the most important function of a Will is to designate your choice of a Guardian to raise the children after your death. We strongly recommend that you make a first choice and also designate an alternate in the event your first choice is not available. You can designate either an individual or a married couple. Give some thought as to whether you would prefer that the court appoint your alternate choice in the event your primary selection is no longer married at the time of your death.
      2. Minor children must receive their inheritance in Trust. However, that Trust is not created until the time of your death. For now, these provisions are simply inserted in your Will. You can name an individual (such as the person you chose as Guardian) or a corporation (such as a bank or trust company) as your Trustee. You also have the ability to set the terms of the trust. Give some thought to the following: At what age can my children receive their inheritance outright? Can they receive distributions before that age? If so, for what purposes? Higher education? Marriage? Purchase of a house? Medical emergency? Other extraordinary expenses your Trustee believes appropriate? Some people also choose to provide for distributions upon attainment of certain ages, for example one-half at age 21, the balance at age 25. Keep in mind, this is your Will and your money --- you decide the terms. Also recognize how important the Trustee is; be sure to chose someone you know well, and who thinks like you would think -- they will have critical decisions to make on behalf of your children.
      3. Also select an alternate choice for your Trustee.
      4. We will insert a standard provision in your Will requesting that your children be raised together in the same household. If you have other concerns, such as raising them in a certain religion, please let us know.
    3. Personal Representative
      1. You will need to designate a first choice and alternate Personal Representative (what is also referred to as executor or administrator). Courts prefer that this person be a state resident. However, if that is not possible, don’t worry.
      2. Commonly, a married persons will appoint his or her spouse as the Personal Representative.
      3. Your Personal Representative does not need to be an accountant, attorney or other professional. They will have these people assist them during the probate process. Two good traits of a Personal Representative are diplomacy and mediation skills, especially in families where things may become contentious.
    4. Other
      1. A husband and wife will each have their own Will. Usually, we find that they are identical; however each should feel comfortable with his or her own plan. For example, sometimes a husband will select someone from his family as alternate Personal Representative and a wife will likewise select someone from her family. Husband and wife should try to agree on the choice of a guardian and trustee however. It is generally acceptable to leave specific items to specific people in each Will such as jewelry, guns, heirlooms etc. Frequently, spouses' Wills will differ on these items.
      2. If you wish to make bequests to charity, let us know. This can be in the form of a percentage of the estate or a specific dollar amount.
  2. Estate Planning Consideration

  3. Before coming in for your appointment, please make a rough valuation of your potential estate. This would include the value of your home, personal property, and financial holdings. Also include the pay-out values of life insurance policies and survivor benefits of retirement plans. If the total of all these assets exceeds $500,000, there may be significant estate tax considerations we will need to discuss. Please alert us if that is the case. The law in this area is subject to change at both the State and Federal level.

  4. Power of Attorney

  5. We recommend that everyone execute a Durable Power of Attorney. This document allows you to appoint a person to handle your financial affairs if you become incapacitated or simply are out of town when documents need to be signed or bills need to be paid. This can be important for older people who may be concerned about matters such as Alzheimer’s or who find it difficult to sign their names because of arthritis. However, even younger persons should consider the use of this document so as to handle a situation where they may be away on a trip when matters need to be handled or in the event of a catastrophe, such as an accident or health problem. In many cases, this document can prevent the need to have an expensive court procedure such as Conservatorship or Guardianship. Your spouse or adult child may be a good choice for this role. Some people prefer to ask parents, siblings or friends to assume this responsibility.

  6. Health Care Power of Attorney

  7. Everyone should have this document. It allows you to set forth your wishes in the event of a medical emergency or terminal illness if you are unable to convey your wishes at that time. It can also save hundreds of dollars in the event your condition would necessitate your placement in a nursing home or community based residential facility. One issue you will need to address is whether you believe that it would be appropriate to withhold food and water from you in the event that you are in a persistent vegetative condition (coma, for example) and a doctor determines that you would not feel any pain or discomfort by such a decision.

  8. Trust

  9. Some people prefer the privacy, flexibility and efficiency of placing all their assets in a Trust. This estate planning tool can be valuable, but it requires changes in the way you hold your assets during your lifetime. As a result, it's not necessarily the right approach for you. We can discuss with you the relative advantages and disadvantages of a Will or a Trust for your particular situation.

  10. Real Estate

  11. If you are married and purchased your residence before 1986, it is probably a good idea to re-title your deed. Prior to 1986, you would have titled your deed as “joint tenancy”. Since 1986, we can now hold property as “survivorship marital property”. There can be a significant capital gains savings by making this relatively inexpensive change.

  12. What To Bring to Your Appointment

  13. You may not need to bring anything. If your plan for your will is relatively straightforward, you may simply keep it all in your head. If we are to make a change in your real estate, please bring your most recent property tax bill and something that lists the legal description, either the abstract, title insurance policy or copy of the mortgage or deed. We will also need your social security number for this purpose.

    We hope this information is helpful, but it is just a start. We will walk through these issues in a very straightforward, uncomplicated manner when we meet with you so that you can devise the estate plan that is right for you and your family.

    Any information presented on this web site is not legal advice nor does its viewing constitute the formation of an attorney-client relationship.