Experienced Estate Planning Attorneys

For most of us, the core part of an Estate Plan centers around a Living Trust. The term “living” is applied to this trust type because it becomes effective and safeguards your interests while you are alive. It also survives beyond your own death, and in certain instances, extends beyond the lifetime of your immediate heirs.

We often analogize and liken a Living Trust to a special safe deposit box in which certain assets are placed in it, granting you and your “successor trustees” control and authority over these assets. A Living Trust anticipates both your potential incapacity and your eventual death, thereby implementing your long-term wishes and desires. Notably, a Living Trust is not a mystical concept but rather a well-recognized mechanism within the American legal system, lauded as the most effective way to design your estate planning and protect your legacy for the benefit of your chosen individuals and causes.

Throughout your lifetime, you maintain full control over this safe deposit box and you have full control and power to make changes because it is a “Revocable Living Trust.” Importantly, when incapacity or death arises, the transition of a Living Trust to the next generation can be executed with ease, usually without court or judicial intervention.

A Pour-Over Will is a last will and testament that serves as a “safety net” to capture any assets that may not have been included in your Living Trust at the time of your passing (but should have been) to be transferred into your trust. For instance, if you temporarily remove your home out of your trust to refinance the mortgage, and you inadvertently forget to retransfer the property back into the trust via a deed, the Pour-Over Will ensures that the home’s distribution aligns with the trust’s provisions, rather than being subject to your state’s intestacy laws. Dying ‘intestate,’ or without a Will, can lead to disastrous consequences for those you leave behind.

However, relying solely on a Last Will and Testament is insufficient for a comprehensive Estate Plan – in fact, it lacks the legal binding of a fully effective document. In practice, a Will essentially resembles a letter addressed to a probate judge, outlining your wishes, but it’s ultimately the judge, a person you will never meet, who makes the final decisions. Moreover, a Will fails to address the critical issue of what occurs if you become incapacitated.

If you have just a Will, potentially a generic Last Will and Testament template downloaded from the internet, your heirs may find themselves facing substantial expenses, including legal fees and court costs, along with a lengthy probate process, typically a year or more. Additionally, it does not incorporate tax planning measures, which could, in itself, pose a significant challenge for your heirs.

“Powers of Attorney” should not be confused with legal professionals, or attorneys.

Instead, these documents grant specific individuals the authority to manage various aspects of your affairs in the event of your illness. This authority is enduring and resilient, allowing them to handle matters not covered by your Living Trust. For instance, they might be designated to collect registered mail on your behalf, settle your financial obligations, and select a nursing home if necessary. They may also be empowered to make decisions concerning your business and financial assets, such as managing your IRA, 401(k), 403(b), digital assets, and various social media accounts, such as Facebook, Twitter, blogs, Instagram, Dropbox, and more.

These designated individuals are commonly referred to as “attorneys-in-fact,” a term that does not relate to licensed attorneys or lawyers in any way.

Another important document within your Estate Plan involves the designation of “durable powers of attorney for healthcare decisions,” which come into play when you are unable to make those choices for yourself independently. These decisions can encompass critical matters such as whether to proceed with a new medical procedure or continue a course of chemotherapy. These documents may go by different names in various states, such as “advance healthcare directive.” Typically, the individual to whom you grant this authority is referred to as your “healthcare agent.”

While these topics may appear daunting, they are of utmost importance. Failing to designate someone to handle these decisions means that someone else will ultimately be tasked with making them. Why leave such critical determinations in the hands of a doctor, a hospitalist, or a judge? Wouldn’t you prefer to have the autonomy to choose the person you trust to make these decisions, especially when your well-being may hinge on them, even during a relatively brief period of incapacity?

A Living Will (not to be confused with a Living Trust) serves as a document that outlines your preferences in the event of extremely dire medical circumstances. Your attorney can engage in a detailed discussion with you, delving into specific issues, including how these scenarios typically unfold in real-life situations.

Think of a Living Will as a kind of consent form that you provide to your loved ones, granting them the authority to make end-of-life decisions when the time comes. However, it offers you the opportunity to express more than a simple directive like, “If there’s no hope, terminate life support.” Instead, it empowers you to convey your wishes regarding matters such as the use of breathing and feeding tubes—decisions that may hold profound personal significance.

In the absence of a Living Will, you may be placing your loved ones in the position of making agonizing choices, potentially burdened by guilt, while also exposing yourself to the possibility of prolonged suffering.

The welfare of minor children, those under the age of 18, is a matter of paramount concern for most individuals. If you are a parent with minor children, it is a fundamental parental duty to establish legal documents that designate a guardian (along with alternate choices as backups) in the unfortunate event of your death or incapacitation.

When you have nominated a guardian as part of your estate planning, the court will most likely respect your expressed preferences.

It is important to note that guardianship encompasses two distinct aspects: physical custody, which pertains to guardianship of the person, and guardianship of the estate, which involves overseeing financial matters. Courts typically treat these responsibilities separately, and you may have a preference to address them separately in your estate plan as well.

Your Estate Planning Attorney might generate additional documents tailored to your specific circumstances. These could include asset protection measures if you are anticipating divorce, bankruptcy, or legal disputes involving yourself or your heirs. Special Trusts and strategies may also be needed to protect the interests of beneficiaries with special needs or disabilities.

It’s important to understand that an Estate Plan isn’t just a single document, but rather an interconnection of appointments, nominations, designations, directives and instructions that dictate who will perform various roles and how your assets will transition from one stage to another. Once again, it’s important to emphasize that this is not a straightforward or unchanging set of documents; rather, it must be carefully and properly created, stored, maintained, and periodically updated over time.