Estate Planning is generally concerned with making sure that the people you want to manage your affairs can do efficiently when needed, and that you can have assurances that the people or charities you want to receive your assets at your death do so in the most efficient and least expensive manner. This involves preparing in the event that you are incapacitated, as well as if you pass away.
Powers of Attorney
Good financial and health care power of attorney documents are worth their weight in gold. These documents are what are necessary to be able to access your financial assets if you are in the hospital, sick, or have lost capacity (i.e. Alzheimer’s), as well as who can talk to the doctors or hospital on your behalf when you can no longer do so on your own. I frequently tell clients that I redo 85%+ of the financial power of attorneys that I review because they are not sufficiently broad in their powers, particularly if long term care planning becomes desirable in the future. Unfortunately, I’ve also had to tell families that because proper power of attorneys were not previously done, it will be necessary to seek guardianship/conservatorship over their spouse/parent who is now incapacitated. This is the process of going to Court and having someone’s normal adult rights stripped away from them, so that someone else can take over. The problem is that getting a guardianship/conservatorship means that the Court will be overseeing the individual’s life, which can be quite burdensome on the family and that process by itself costs more than an entire estate plan.
Do I need to avoid probate?
Many people feel that because they drafted a will, that their estate will avoid Probate Court (and the associated costs, which are approximately 3% of the estate at a minimum). However, a will is nothing more than instructions to the Probate Court. This means that in order for the will to be effective, it MUST go through probate! If there is no probate estate, then the will is basically meaningless. For most middle and upper class families, using a revocable trust provides the comprehensiveness necessary for a good estate plan, while also avoiding probate. For more wealthy families, using trusts (both revocable and irrevocable) can literally save hundreds of thousands of dollars in unnecessary estate taxes. For smaller estate, sometimes using beneficiary designations (i.e. Payable on Death or P.O.D.) can be a suitable solution.
The process of figuring out the most appropriate tool to ensure your assets get where you would like them to go efficiently is what makes getting professional advice so important. Too often, people feel that whatever they read on the internet or their buddy down the street did is what they need. A proper plan is based on your individual situation (both the financial assets and also your goals). When I sit down with families, they inevitably remark that there are parts of the process that they never even considered, and they are happy that they know all the bases are covered.
What about Estate Taxes?
Estate tax planning is an area that has diminished in importance over the last several years. This is due to the fact that Congress has raised the estate tax thresholds to over $5,000,000 per person. The reality is that less than 1% of Americans have this type of net worth, or are likely to ever have this much in assets. But for families that are fortunate enough to accumulate this level of wealth, estate tax planning is vitally important. This is because when the estate tax hits, it is a major tax (40%). For many families that have between $10-15,000,000 it is still possible to completely avoid estate taxes. When avoiding is not possible, minimizing the estate taxes due can still save hundreds of thousand of dollars.
What if I die and my spouse remarries?
This is an issue that is discussed far more today than 10-15 years ago, primarily because many of the 50-70 year olds today have seen or heard about situations where the estate plan was totally changed after mom or dad passed away, and usually to the detriment of the children of the couple. While an inheritance should never be looked at as a birthright for a child, most of our clients do want to ensure that no matter which spouse is the first to go that the surviving spouse is provided for, while at the same time ensuring that whatever is left upon the second death doesn’t end up in someone else’s hands. Fortunately, there is some easy planning that can prohibit this from happening if it is an important issue for your family.
Can I leave funds to charities?
For families that would like to leave even a smaller donation to a charity, there are many planning opportunities to either leverage these donations into larger impact or to have substantial tax savings. Charitable planning can be both incredibly rewarding, but also financially smart for many families. When preparing an estate plan, thought should be given to how charitable giving fits into your personal goals. Often, you can do good for your family while at the same time doing good for your community and causes that are important to you.
You have worked hard during your lifetime and accumulated assets- don’t let those assets be squandered needlessly to taxes, probate costs, attorney’s fees or worst of all, allow uncertainty in your wishes to be a dividing force in your family after you are gone. Make it a priority to get an appropriate estate plan put together for you and your family. Contact the Weeks Group today to understand the process of proper planning for your unique situation.
What is Estate Planning?
When an individual passes, real property must be transferred to other parties. In the US, any competent adult has the right to choose how their assets are distributed after their passing. A proper estate plan can help an individual minimize potential taxes and costs associated with this process and coordinates the settlement of homes, investments, businesses, life insurance, employee benefits (such as a 401K plan), and other real property. An estate plan should also include long-term health care instructions, to convey your final wishes if you become severely ill or incapacitated.
Why Is It Important to Establish an Estate Plan?
Proper legal arrangements are necessary for the management of your assets and affairs after your passing. If left untended, the state’s intestacy laws will assume responsibility of your assets upon your death or incapacity. This often results in higher taxes and improper distribution of assets.Estates without proper estate plans are also subject to a lengthy and expensive probate process. Probate often applies more stress to families dealing with the grief of a loss and can start bitter feuds over property.
What Does My Estate Include?
Real estate: your home and investment properties. Investments including interests you hold in businesses, shares in joint accounts, retirement accounts, life insurance policies, trust-owned properties, which you may control.
How Do I Name A Guardian For My Children?
If you have children under the age of eighteen, designating persons to be appointed guardian(s) over their person and property should be a priority. If a surviving parent lives with the minor children (and has custody over them) he or she automatically continues to remain their sole guardian. This is true despite the fact that others may be named as the guardian in your estate planning documents. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court.
What Estate Documents Should I Have?
A Living Trust:
A Living Trust is a legal document that dictates instruction for the management of your assets after you pass. A Living Trust allows for the transfer of your assets without unnecessary probate or court interference. It also allows for the management of your affairs in case of incapacity. Ideally, a properly-contructed estate plan using a Living Trust will allow your family to manage your estate privately, with less cost and confusion.
A will is written to transfer your assets according to your wishes. A will also names an Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a primary Guardian and a list of alternates in case your primary choice is unable or unwilling to serve. A will only becomes effective upon your death, and is admitted by a probate court.
A Pour-Over Will:
If you have a Living Trust, you will likely need a Pour-Over Will. If you have minor children, your Will can designate guardianship. A Pour-Over Will also allows a designated executor to transfer assets into your trust so that they are distributed according to its terms.
A “Durable Power of Attorney for Property”:
A Durable Power of Attorney allows you to carry on your financial affairs in the event that you become ill or incapacitated. A properly drafted power of attorney, appoints a guardian or conservator in the case of incapacitation and prevents the court from taking control of your assets.A “Durable Power of Attorney for Health Care”
Under law you are allowed to designate a family member or friend to make decisions about your medical treatment options if you are unable to decide for yourself. This can be done by assigning a “Durable Power of Attorney for Health Care” or Health Care Proxy. Your agent will then be allowed to dictate pre-defined health care decisions on your behalf. Your agent is responsible for making sure that doctors and caretakers honor your wishes and can decide how your instructions apply if your medical condition changes.
A Living Will:
A Living Will gives you control of decisions about your medical care when you have a terminal condition, are unconscious or too sick to communicate. It informs your caretakers of exactly what you want, so that you, and not others, choose how you are treated. It is the best way to make sure your wishes will be respected and maintained by health care providers. Almost all states have Living Will laws to protect a patient’s right to refuse medical treatment.
HIPAA Authorization Form:
Medical providers may refuse to release information, without authorization, citing the 1996 Health Insurance Portability and Accountability Act (HIPAA). This law prohibits the release of private medical information without prior consent. A HIPAA Authorization Form certifies the release of medical information to your designated Agents, your Successor Trustees, and family.