Willi Law Firm provides counseling in all aspects of estate planning.
What is estate planning?
Estate planning is a process. Through estate planning, you can determine:
- How your assets will be managed during your lifetime if you ever become unable to manage them yourself;
- How your personal care will be managed and how health care decisions will be made during your lifetime if you become unable to care for yourself, and;
- How your assets will be distributed after your death.
Many people mistakenly think that estate planning only involves the writing of a will. Estate planning also involves financial, tax, medical and business planning. A complete estate plan includes several documents, such as:
- Guardianship in Case of Necessity (of Minor Children and of yourself)
- Living Trusts (Revocable Living Trusts)
- Financial Powers of Attorney (Statutory Durable Power of Attorney)
- Living Wills and Medical Powers of Attorney (Directives to Physicians)
- AB Trusts (Marital Bypass Trusts)
- Trusts for Asset Protection, Minor Children, and Other Matters
- Charitable Trusts
- Special Needs Trusts
- Firearms Trusts (Gun Trusts)
- Family Limited Partnerships
- POD Accounts
What is involved in estate planning?
There are many issues to consider in creating an estate plan. First, ask yourself the following questions:
- What are my assets and what is their approximate value?
- Whom do I want to receive those assets—and when?
- Who should manage those assets if I cannot—either during my lifetime or after my death?
- Who should be responsible for taking care of my minor children, if I become unable to care for them?
- Who should make decisions on my behalf concerning my care and welfare, if I become unable to care for myself?
- What do I want done with my remains after I die, and where would I want them buried, scattered or otherwise laid to rest?
Once you have some answers to these questions, you are ready to seek the advice and services of a qualified lawyer. A lawyer can help you create an estate plan, and advise you on issues such as estate taxes, title to assets and the management of your estate.
Who needs estate planning?
You do—whether your estate is large or small. You should designate someone to manage your assets and make health care and personal care decisions for you if you ever become unable to do so for yourself.
If your estate is small, you may simply focus on who will receive your assets after your death, and who should manage your estate, pay your last debts and handle the distribution of your assets.
If your estate is large, your lawyer will also discuss various ways of preserving your assets for your beneficiaries and reducing or postponing the amount of estate tax which otherwise might be payable after your death.
If you fail to plan ahead, a judge will simply appoint someone to make decisions about your personal care and your assets. Your assets will be distributed to your heirs (or those claiming to be your heirs) according to a set of rules known as intestate succession.
What is a will?
A will is a traditional legal document which:
- Names individuals (or charitable organizations) who will receive your assets after your death, either by outright gift or in a trust.
- Nominates an executor who will be approved my the probate court to manage your estate; pay your debts, expenses and taxes; and distribute your estate according to the instructions in your will.
- Nominates guardians for your minor children.
Most assets in your name alone at your death will be subject to your will. Some exceptions include securities accounts and bank accounts that have designated beneficiaries, life insurance policies, IRAs and other tax-deferred retirement plans, and some annuities. Such assets would pass directly to the beneficiaries and would not be included in your will.
Assets that have been transferred to a revocable living trust would be distributed through the trust—not your will.
What is a revocable living trust?
A revocable living trust is a legal document that can, in some cases, partially substitute for a will. With a revocable living trust (also known as a revocable inter vivos trust or grantor trust), your assets are put into the trust, administered for your benefit during your lifetime and transferred to your beneficiaries when you die—all without the need for court involvement.
Most people name themselves as the trustee in charge of managing their living trust’s assets. By naming yourself as trustee, you can remain in control of the assets during your lifetime. In addition, you can revoke or change any terms of the trust at any time as long as you are still competent. (The terms of the trust become irrevocable when you die.)
In your trust agreement, you will also name a successor trustee (a person or institution) who will take over as the trustee and manage the trust’s assets if you should ever become unable to do so. Your successor trustee would also take over the management and distribution of your assets when you die.
A living trust does not, however, remove all need for a will. Generally, you would still need a will—known as a pour over will—to cover any assets that have not been transferred to the trust.
You should consult with us to assist you in the preparation of a living trust, your will and other estate planning documents. Also, keep in mind that your choice of trustees is extremely important. That trustee’s management of your living trust assets will not be automatically subject to direct court supervision.
Other important estate planning documents.
Another important reason to meet with an estate planning lawyer is to set forth in a legal document, your wishes and directives regarding your healthcare and finances. These documents are critical in the event you are rendered unconscious or otherwise unable to state your wishes. Our lawyers can help you draft medical powers of attorney, financial powers of attorney and living wills that will help your family and medical providers make important decisions if you are unable to do so.
Can I set this up on my own?
There is an old adage that you could perform surgery on yourself, but why would you want to? While that is an extreme example, it conveys a strong point: estate planning, like surgery is a very complicated and highly specialized and requires someone to be continually up to date on frequent changes taking place. Our knowledgeable and experienced attorneys understand how to apply these difficult laws to individual situations, to come up with a plan that not only best suits you, but also best protects you and your loved ones.
For more information about our estate planning law practice, please feel free to visit our law firm website located at www.atxelderlaw.com.