Having An Estate Plan Is Essential
A little estate planning today can avoid heartache, a major headache, or serious legal trouble for you and your loved ones tomorrow.
If you died tomorrow, do you have your Will and other important legal documents in place?
According to a survey conducted by Harris Interactive, only 39% of adult Americans have a Will in place, only 29% of adult Americans have a Power of Attorney in place, and only 18% of adult Americans have a Trust in place.
It is never too early to start your estate plan, but often times it is too late. Many people don’t even know what the term “estate planning” means. Others assume that an estate plan consists only of your “Will,” more formally known as the “Last Will and Testament” or “Last Will.” But for most individuals, the Last Will is simply one of four main documents needed in order to form even the simplest of an estate plan.
Those documents are as follows:
- Living Will
- Durable Power of Attorney
- Healthcare Power of Attorney
- Last Will and Testament
These four documents together will cover most concerns in the event of a death or serious medical emergency. The following provides more detailed information regarding each of these legally binding documents:
A Living Will deals specifically with end of life decisions. It comes into play in the event an individual has an incurable injury, disease, or illness. The issues is whether, under those circumstances you would prefer the use of life-prolonging procedures, even if it would only artificially prolong the dying process. It allows you to elect whether you would like to be kept alive artificially in the event death is imminent or to withhold heroic medical treatment. Having a living will takes the decision out of your family members’ hands and confirms to them your own feelings on the matter, alleviating stress within your family and ensuring the right decision has been made by you.
Durable Power of Attorney
A Durable Power of Attorney will authorize someone else to take care of your business matters such as paying bills, managing investments, controlling finances, managing retirement plans, etc, in the event you are unable to manage your affairs. For younger people, these are written so as to only become effective upon the Principal’s disability or incompetence. Alternatively, it is quite common for an older individual to make it effective immediately, so that a spouse, child, or close friend can oversee such matters.
Health Care Power of Attorney
A Healthcare Power of Attorney allows your agent to take care of your healthcare decisions and issues related thereto – but only when you are unable to do so. Health care practitioners always have an obligation to discuss your care with you and get your consent – if you are conscious and competent. But, as so often happens, things can change quickly. We often see situations where a car accident, a stroke, a heart attack or other sudden medical emergency renders a client unable to direct their own care.
A Health Care POA must be created before you become incapacitated. If not, the only option left may be to have a guardian appointed on your behalf. This involves a filing with the court, and consumes time, money, and often creates ill will between family members. It can be so easily avoided by the use of a Health Care POA. This also lets YOU – not a judge — decide who will be making decisions regarding your care and treatment. Proper planning lets YOU control the situation.
Last Will and Testament
This is the last document in a basic estate plan and the one most people are somewhat familiar with, but many people do not appreciate or understand the complexities involved in the creation of a Last Will. In addition to indicating how you would like to dispose of your property, including specific and general devises, you also designate a personal representative to carry out the probate process, decide whether the estate administration should be supervised, and choose the guardian of your children. Under Indiana law, the will must be signed in a specific way pursuant to statute, or it can be ruled invalid and therefore unenforceable. Don’t let that happen!
Each Last Will varies greatly. It can provide genealogical information. It can provide for future children, whether natural or adopted. It can be used to provide specific, charitable, and/or residuary bequests. It can also be used to disinherit an heir or to place conditions on an inheritance. Wills can be extremely flexible – but only if you are trained and experienced in the preparation of all these types of clauses – something you will never get from a document purchased online or at the office supplies store. When you are ready – and if you are an adult without a will you should be ready today – call a lawyer to set up your own estate plan. Then, as life changes, remember to review it on a regular basis, at least every three years. This way, as your situation evolves, your will can evolve with you.
Most people equate trusts with extraordinarily wealthy individuals trying to protect assets, but never realize that a trust could benefit them as well. A trust has three roles:
- Settlor (The person who creates and funds the trust.)
- Trustee (The person selected by the Settlor to manage the trust assets and distribute them as directed by the trust document.)
- Beneficiary (The person or persons who receive the benefit of the Trust.)
There are many types of trusts available in today’s world that can help you plan your estate.
Testamentary trusts are created within a will (thus the name, as it is a part of the last will and “testament”), and only come into existence upon the death of the Settlor. A testamentary trust need not be funded prior to death. It can be changed at any time prior to the Settlor’s death.
The most common trust is a Living Trust. A Living Trust is established during the Settlor’s lifetime, rather than upon his death. A Living Trust allows an individual to determine who will get their property when they die much like a last will and testament. But, unlike a last will, a Living Trust allows an individual to avoid the probate process. Avoiding probate can save time, money, and allows you to keep your documents and the extent of your assets private after death.
A Living Trust does not allow you to name guardians for children, name an executor, or instruct how debts or taxes should be paid. It also requires that an individual properly transfer their personal and/or real property into the trust during the Settlor’s lifetime. This is known as “funding” the trust, and it is imperative that this be done properly and properly documented. Many, if not most people, who try to do this themselves do not fund their trust properly.
A trust can be revocable or irrevocable. As the names suggest, the difference is whether any changes can be made after the establishment of the trust. Most trusts start out as revocable, but often become irrevocable later upon the happening of a predesignated event, such as the death of a spouse or business partner.
Trusts are used for many purposes, and there are many variations of trusts in addition to the basic Living Trust, including the following:
- Asset Protection Trust
- Charitable Remainder Trust
- Special Needs Trust
- Spendthrift Trust
For additional information, make an appointment to meet with one our attorneys at The Nice Law Firm.
If an individual becomes incapacitated without a power of attorney, then the person’s caretaker will be required to petition the Court for a guardianship. Guardianships can be either temporary or permanent depending on the circumstances. Unfortunately, the most common guardianships our firm sees are over minor children. If one or both parents of a minor child dies, becomes incapacitated, is incarcerated, or abandons the child, then the grandparent/relative/caretaker is often required to apply for a guardianship through the court system. Even after a guardianship is established, it is subject to court oversight and periodic reporting. All this can be avoided simply by having a will.
After the passing of a loved one, the law requires that the designated personal representative follow the probate process to transfer assets and pay debts of the decedent. This process can be simple or complex depending on the circumstances surrounding the case.
This often depends on whether the person died with a will (“testate”) or without a will (“intestate”). Our attorneys are familiar with the probate process, experienced in administering of estates, and can help you navigate the law in order to follow proper procedure.
Given our background in litigation, we can also help with will contests (beneficiaries have conflicting opinions as to the validity of a will) and contested claims (beneficiaries have conflicting opinions about distribution of the estate or the validity of claim by a debtor).
We can help you with Wills, Trusts, Probate, Estates, Guardianships, Powers of Attorney and more.
The worst time to review an estate plan (and unfortunately the most common) is after having an incident, so it is imperative that your documents stay up to date as your life changes. Often younger families need more complicated estate plans with testamentary trusts which become simpler as those children grow up.
We recommend you evaluate your estate plan with your attorney every three years or at any major life-changing event (e.g. divorce or a death in the immediate family). If you would like to discuss any or all of the foregoing or have any questions about the estate planning process, please contact us.
We are here, not only to evaluate your needs and prepare these important legally binding documents for you, but to also provide an ear to listen to the details of your situation to determine what is best for you and your family, to provide you with sound legal guidance, and to be here for you and your family when you need us.
“I had a wonderful experience when I chose The Nice Law Firm to represent me. Their team was knowledgeable, responsive, kind, and effective in every step of the process needed to resolve my legal matter. I wouldn’t go anywhere else!” – Evangeline D.