Estate Planning Building Blocks
No matter how simple or sophisticated, every Estate Plan should have these 3 Essential Building Blocks:
This Document’s job is to tell the Probate Court
- Who is to receive property from your estate (Probate Property)
- Who is in charge of your estate (Executor or Personal Representative)
- What powers or oversight the Court should Require (bond waiver or power to sell)
A Will can also create a testamentary Trust. If you do not have Will, then your property is subject to intestacy rules. While you are generally free to dispose of your property as you desire, a spouse cannot be disinherited.
Generally it is a good idea to have two; one for financial and the other for medical decisions. A Power of Attorney designates a person who can make decisions on your behalf without a court order. Some examples include:
Financial: The ability to sell real estate; file taxes, write checks.
Medical: Make medical decisions for treatment, assisted or skilled nursing placement.
You do not lose your ability to make decisions for yourself by signing a Power of Attorney. It can be revoked. If you don’t have one and become incapacitated, your family may need an expensive guardianship in order to manage your property or make decisions about your care.
This is a document that informs medical providers and your family about what type of care you want, or don’t want, at the end of your life. For example, you may want life saving treatments withheld if certain conditions are met. If you don’t have a directive, the law presumes that you would want certain care such as feeding tubes.
Biggest Estate Planning Mistake:
Too many people become confused by all of the choices and therefore do nothing. A better strategy is to start with the estate planning essentials and if necessary build from there.
If creating an essentials plan, one should consider enhancing it with the following to possibly avoid probate. These tools can be effective but have limitations.
Transfer on Death documents do not transfer title while you’re alive and are inexpensive to create. They do not allow for comprehensive planning.
Transfer on Death Deed: Is one way to avoid probate if certain conditions are met. This is a tool that can be used but it has drawbacks to a Trust. Most notably, it does not provide for contingencies and it requires a beneficiary to file an acceptance within 9 months of the death. A Transfer on Death Deed overrides provisions of a Will.
Transfer Title on Death: Now motor vehicles can be transferred on death without a Will, Trust or Probate.
Beneficiary designations are found as “Payable on Death” choices on bank accounts and beneficiary designations on life insurance polices, IRAs, Roths and brokerage accounts. These pass to the chosen beneficiaries without probate. In fact, a Will and a beneficiary designation disagree the Will loses. These are forms that are created by the institutions, clients are counseled on how to use them to their advantage. Often it is best to coordinate these with a Trust for maximum benefit.
Limitations of Transfer on Death and Beneficiary Designations: While these tools can avoid probate, unless used with a Trust they do not provide for comprehensive planning. If the person to inherit dies before the owner, then probate may still be needed for the next in line to inherit. It also does not provide for planning such as youthful heirs, disabled heirs or those who need asset protection.
A Trust allows the Trustee is able to manage or distribute Trust property without the need for oversight or control of the a probate court. Trusts can be very simple; such as distributing property outright. Trusts can also provide asset protection to the person who sets it up and to those who will inherit.
What’s Right for You?
Prices indicate a basic package. They include counseling, an estate planning binder, witnesses & Notary.