Basic Estate Planning Documents
The following documents will enable you to protect yourselves, your heirs, and the assets in your estate.
1. Living Trust. A Trust is a legal entity that has a Trustor (who creates the Trust), Beneficiaries (who will benefit from the Trust), and a Trustee (who manages and administers the Trust for the benefit of the Beneficiaries). By placing property in a Trust, you can control how and for what purposes your assets are used during your life and at your death.
With a Trust you can also control when your assets will be distributed, to whom, and on what conditions. A Trust is often used as an alternative to the outright distribution of assets to children. A Trust can be structured to provide flexible management for Beneficiaries who are either too young or incapable of managing property. By giving the Trustee broad discretionary powers, the needs and financial maturity of the Beneficiaries can be considered when making distributions of Trust income and principal.
Property placed into a Trust created and funded while you are living will not be subject to probate and thus the privacy of your personal affairs is maintained. During your life you can move your property in and out of your Trust and, generally, you can revoke or amend your Trust so long as you are alive and competent. Proper estate planning can make your life and the lives of your loved ones much easier.
A living trust protects you in at least four ways:
a. Avoids probate and saves time and money in transferring assets to your heirs.
b. Avoids conservatorships and saves time and money should you become disabled.
c. Provides a written, documented plan for proper distribution of assets to your heirs.
d. Provides continuous, controlled management in the conservation and transfer of your estate.
2. Last Will and Testament. Every adult should have a Will. State law requires certain formalities to make a valid and enforceable Will. Handwritten Wills are valid in most states. Formally prepared Wills usually require two witnesses and a notary public. A Will should revoke any previous Will, name a personal representative to collect your assets and pay your bills as you direct, name a guardian for any child who is under 18 or who is disabled or incapacitated and dispose of all of your property either through outright gifts, a gift in a trust created by your Will, or a gift to an already established trust. In your Will, you can specify where you want your personal property to go. You can change this list at any time without writing a new Will.
*Consider a Trust Instead of a Will. A Trust can specify who will manage your financial affairs if you die, or become disabled or incapacitated. Without a Trust these decisions are made through the courts, a process that takes time, is costly, and can impose undue restrictions on your family. With only a Will your estate must go through probate court.
Probate freezes your assets and can take months or even years to complete. A Will provides no protection if you are incapacitated. Without a Trust a court appointee oversees your care. The court approves all expenses and oversees your financial affairs. This process can be costly to your beneficiaries and could lead to contention and frustration. Further, if you own assets and have no Will or trust and you die or become incapacitated, the court may take control of your assets.
When you set up a Trust, you transfer ownership of your titled assets from your individual name to the trustee of your Trust. There is nothing for the courts to control when you die or become incapacitated. This keeps you and your family out of the courts. Also, the process of settling a Trust is much quicker, less expensive, and more private than settling a Will and may also help you reduce or eliminate estate taxes.
2. Pour-Over Wills. This type of Will is used in conjunction with a Living Trust. If probate is unavoidable, these Wills simply “pour” all probate assets “over” to the trustee of your trust. You may name a guardian for any minor children, and you may designate the recipients of any family heirlooms, collections, personal property, etc.
3. Living Wills. A “Living Will” is a directive to physicians that expresses your desires regarding “life-sustaining procedures” that unnaturally prolong the dying process in the event of a terminal illness or injury.
4. Durable Powers of Attorney for Health Care. With these documents you appoint someone as your attorney-in-fact for health care decisions.
5. Durable General Powers of Attorney. If one of you becomes incapacitated or unavailable for any reason, the other can still transact any business or handle any matter.
6. Deeds. Appropriate deeds are recorded to transfer any real estate that you own as individuals to yourselves as trustees of your trust.
7. Transfer Documents. Other transfer documents may be completed to transfer ownership or change beneficial interests for other assets.