The older we get, the more critical it is to ensure our affairs are in order and have an estate plan. But what exactly is an estate plan, and what should be included?

 

An estate plan is the process whereby we map out how you wish for your personal and financial affairs to be handled in the case of incapacity or your eventual death. A properly constructed estate plan can help an individual or couple achieve some of the following goals:

  • Ensure that your assets will be managed property if you become incapacitated, limiting your own ability to manage your affairs
  • Mitigate the effects of taxation
  • Mitigate administrative costs
  • Provide care for loved ones with special circumstances including disabilities, minors, individuals with addictions or who are in volatile relationships/marriages.
  • Ensure assets are passed to the people and entities you wish to benefit at death.

In carrying out this process, legal documents are created that bind your agents to these instructions you’ve laid out.

What does an Estate Plan include?

A comprehensive estate plan requires a combination of usually two or more documents to effectuate an individual’s wishes. At its most basic level this includes a Last Will and Testament as well as an Advance Medical Directive or Medical Power of Attorney. But it may include a revocable living trust, financial power of attorney and other documents.

We’ll take some time to address of each of them.

  • A will (also called a last will and testament) is the most essential to have to ensure your assets are passed to your intended beneficiaries. Additionally, a will allows you to name an individual to serve as your personal representative to carry out the instructions you provided in the will. specifies how you want your estate to be distributed. Besides dividing up your assets, a will also appoints guardianship for minor children and if you have minor children, it is critical that you designate who you wish to serve as guardian, otherwise you leave it to the court system to decide on your behalf. If your estate includes a revocable trust, a will is still needed. Called a “pour-over will,” the goal of this document is to cover any assets that may have not made it over to the trust.1

To die without a will is to die Intestate. In such a circumstance, the state will determine the disposition of your assets based upon the intestate succession statutory scheme of that state. In other words, the state will divide assets based upon an assumption of how assets are typically disposed of. It is a less than ideal arrangement but happens more often than it should. Most recently, the estate of fallen celebrity Chadwick Boseman was disposed of using this method.

Advantages of a Will

Disadvantages of NOT having a Will

Clarifies rights and duties of personal representative and trustees A time delay in transferring assets to beneficiaries
Mitigates a chance of dispute amongst intended beneficiaries Court mandated oversight of estate administration and incurs additional legal fees
Avoids property passing to people not intended to receive it. Probate costs are high and will erode the value of assets otherwise intended for heirs/beneficiaries

 

  • An advanced medical directive (medical power of attorney) or living will establish who can make medical decisions for you should you become unable to do so. A medical power of attorney also allows you to designate a conservator should you become mentally incapacitated.1 An advanced health care directive requires you to reflect on different medical scenarios where you are afflicted with an incurable or irreversible medical condition caused by injury, physical illness or disease that would result in death, but for the introduction of medical treatment to help you continue to live.

The document details to your physicians what type of care you want to receive at the end of your life when you face a terminal illness or are in a vegetative state. Do not resuscitate (DNR) and do not intubate orders are listed here.

Most individuals do not enjoy this part of the process, but it is actually a highly considerate and loving step to take. It alleviates your loved ones of the burden of having to make these decisions on your behalf. Instead, they simply follow the instructions you’ve clearly memorialized in the advanced medical directive.

  • A financial power of attorney, much like a medical power of attorney, appoints someone to handle your financial affairs should you become unable to do so. There are two different types of financial powers of attorney: a durable power of attorney and a springing power of attorney. A durable power of attorney goes into effect as soon as the documents are signed, whereas a springing power of attorney only goes into effect if you become mentally incapacitated.2
  • A revocable living trust is a more detailed document that details not just what happens after you’re gone or incapacitated but what happens while you’re alive, too. At its core, a revocable trust is a vehicle whereby an individual (the Grantor) empowers an individual (the Trustee) to hold legal title to your assets; for the beneficial use of someone else (the Beneficiary). This means that the trustee is legally responsible for managing the property according to the trust rules and that the beneficiary receives the financial benefits, such as income, principal, and use of and enjoyment from the trust property. If the trust is a revocable trust, the grantor has the right to change/amend or end the trust at their discretion and at any time. However, once the grantor(s) dies, the trust becomes irrevocable and you are no longer able to amend or revoke it.If you have a more complicated estate, a revocable living trust can help manage a variety of assets and beneficiaries. As the trustee, you’ll still have control over your assets while they’re in the revocable living trust, and assets held in the trust will avoid probate after your death.1,2
Advantages of a Trust Disadvantages of NOT having a Trust
Protects assets from creditors, divorces and spendthrifts Cost to setup a trust are typical more than a will.
Allows control of how and when distributions can be made. Terminating or removing a trustee can be challenging.
Avoids the cost and process of probate Depending on terms of trust, it may require ongoing trust administration cost and expenses.
Keeps assets and other personal details out of public record. A failure to properly re-title assets into the name of the trust may result in having to open a probate estate.
Beneficiaries can gain access to assets more easily than if transferred through a will.  

 

Estate plans are a necessary part of life, albeit one that no one really wants to think about. But having an estate plan is one of the kindest things you can do for your loved ones. You’ll gain peace of mind knowing that your family is taken care of, no matter what life throws at you.

 

 

  1. https://www.investopedia.com/articles/pf/07/estate_plan_checklist.asp
  2. https://www.thebalance.com/what-is-a-revocable-living-trust-3505191
This content is developed from sources believed to be providing accurate information, and provided by Miles Brown Asset Management, LLC. It may not be used for the purpose of avoiding any federal tax penalties. Please consult legal or tax professionals for specific information regarding your individual situation. The opinions expressed and material provided are for general information, and should not be considered a solicitation for the purchase or sale of any security or legal advice.

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