Planning your estate is an important way to ensure that your family understands your wishes after your death and to make sure that they can help make decisions for you should you become incapacitated or otherwise unable to make your own decisions during your life.
Though estate planning documents can be complex, our attorneys can help walk you through what makes the most sense for you and your family.
Last Will and Testament
The Last Will and Testament is probably one of the most familiar estate planning documents, and it instructs your executor (or executrix, if female) how you wish your assets disbursed after your death.
You can make specific bequests of personal property (e.g. jewelry, furniture, vehicles, etc.), real property (e.g. house, farm, etc.), or sums of money. Bequests can be made to individuals or organizations, though it is very important to ensure that the correct organization name is given, and you may wish to include an alternate recipient should the organization no longer exist upon your death. Our attorneys can help you think through the most common scenarios and what’s most appropriate based upon your desires and your assets.
Should you fail to have a Last Will and Testament, then your assets will be divided according to state law, which may not be what you desire. Typically, this means your spouse would get a share of the estate and your children would also get a share. However, each situation is unique, and this kind of situation is solvable with a valid Last Will.
Also, a Last Will and Testament should not be confused with your Last Wishes. Your Last Wishes dictate to your family what kind of service you desire, how you want to be buried, and etc. Often a Last Will and Testament is not opened or found until after the service/burial. It’s important to talk with your family about these matters before you are unable to.
After your death, your Last Will and Testament will likely need to be presented to the court in order to have it probated, which includes having your named executor appointed to administrate your estate and carry out the terms of your Will.
Power of Attorney
A Power of Attorney names an attorney in fact to act on your behalf to manage your affairs and who can execute documents on your behalf. These documents can range from bank checks to contracts to tax documents to deeds of conveyance.
Should you become mentally disabled or otherwise incapacitated, the Power of Attorney may still be valid if it includes the proper language to make it durable (i.e. if a durable power of attorney, it is still valid no matter your mental capacity or ability to make your own decisions). However, your Power of Attorney ceases to be valid upon your death.
If you do not have an attorney in fact and become mentally disabled, then a Guardianship action will have to be initiated in Court, which is described below. Further, there may be some situations which warrant a guardianship action even if you have named an attorney in fact, but one of our attorneys can help explain further.
Appointing an attorney in fact is important no matter what stage of life you are in. Accidents, medical problems, and other debilitating events can happen without warning leaving your family and friends unable to handle your affairs.
Guardianships and Conservatorships
In some cases, particularly when no attorney in fact has been appointed, when a person becomes unable to make their own decisions, whether because of a mental or medical disability or other such debilitating condition, a family member, friend, or other interested party may speak with their local County Attorney to begin the Guardianship process.
A Guardianship action is a Court case in which a person is evaluated by medical and other professionals to assess their mental capacity and status. These evaluations are then provided as evidence to a jury during a court trial. It is then up to the jury to determine whether or not a person should be considered disabled.
These kinds of actions can add unnecessary burdens on your family and friends that can in many cases be solved by a properly executed Power of Attorney.
The Court action tends to take two to three months to resolve, and the Petitioner, the person applying for guardianship, is required to pay whatever costs and fees necessary to file the action.
A conservator can also be appointed for an individual. This person has the responsibility of overseeing that person’s financial affairs. Often the Court will appoint the same person as Guardian and Conservator, allowing them to make necessary medical and financial decisions. However, in some cases the Court may appoint different persons to these two roles.
Health Care Surrogate and Living Will/Advance Medical Directive
A Health Care Surrogate and Living Will (sometimes a combined document) instructs doctors, hospitals, and other medical facilities about who they can release records and other information to, as well as who is responsible for making your health care decisions should you be unable to make those choices for yourself.
A Living Will specifically instructs physicians regarding what kinds of treatment you want and don’t want, such as life support. Should there be no chance of recovery or substantial improvement and should you be unconscious or otherwise incapacitated, your Living Will would instruct your appointed surrogate and your doctors to cease all life saving measures.
These documents are different from a do-not-resuscitate order (DNR) in that they deal with long term medical care questions and not emergency, extraordinary life saving measures.
Revocable and Irrevocable Trusts
Trusts are an important asset planning tool that can help protect your assets from federal estate taxes and potentially avoid a probate action in Court upon your death. A revocable trust (or sometimes called a Living Trust) is a trust that is created during your lifetime and can be canceled at any time before your death; an irrevocable trust, on the other hand, cannot be canceled and will only cease when the terms of the trust are carried out in full or through a Court action.
A Testamentary Trust, which is created in your Last Will and Testament, is often, but not exclusively, utilized when your children are under a certain age and allows your named Trustee to manage whatever assets have been passed to them.
Business Succession Planning
If you wholly or partly own a business, it is important to plan what will happen to your interest in that business upon your disability or death. From important tax implications to day-to-day business operations, our attorneys can help create a plan by which your families and business partners can continue operating.
Tax Planning and Estate Taxes
Our tax attorneys can help you plan for your estate’s taxes, minimizing the burden to your family. In addition, we prepare state inheritance tax returns and can help make sure that all the necessary final tax returns are submitted.