People often have ideas of how they would like their estate distributed or how personal matters should be handled upon their death, yet they are not always sure how to accomplish these goals. Below are three scenarios that highlight the importance of speaking with an estate planning attorney to ensure you are making informed decisions about your estate plan.
Client A came into the office requesting a will. A family friend told her a will would allow her to effectively distribute her assets. While this is generally true, further discussion with Client A revealed that a trust plan would be more beneficial considering her circumstances and goals.
For example, Client A had two children: a 16-year old son and a 12-year old daughter with special needs. She wanted to control the amount of funds distributed to her children to prevent wasteful spending. She also needed funds set aside for the long-term care her daughter required. Finally, Client A did not want her estate plan to be administered by a probate court, effectively becoming public record, upon her death.
- A trust plan allows Client A to appoint an individual or entity, known as a trustee, to manage funds and other trust assets on her behalf when she is gone. She may designate specific amounts of funds to be distributed to each child, as well as specific ages that each child should receive such distributions, thus achieving her desired control.
- A Special Needs Trust contains many of the same provisions as a traditional trust but can be created for the specific benefit of the special needs child without jeopardizing any government assistance the child may receive. Like in a traditional trust, a trustee is appointed, whose discretion and responsibilities are determined by the client.
- A trust plan can avoid probate court and maintain client privacy.
Client B came into the office requesting a trust. His co-worker indicated “it was the only way to properly transfer his assets upon his death.” While a trust transfers assets upon death, further discussion with this client revealed that a will plan would accomplish the client’s intent, without the higher cost of the trust.
For instance, Client B was single with no children. He owned two properties including his home and a summer cottage. Upon Client B’s death, he wanted his home and business to transfer to his brother, and his cottage to transfer to his long-time friend. However, Client B wanted the ability to sell his cottage before his death if the opportunity arose.
- Client B’s properties and business may be effectively transferred upon his death using a will plan and operation of law.
- A Ladybird Deed can be used to transfer his real properties upon his death, while preserving his interest in the properties and his ability to transfer them during his lifetime.
- Similar to a Ladybird Deed, a Ladybird Assignment can be used to transfer his personal property upon his death while preserving his rights and interest in the same.
Client C came into the office for a review of her and her husband’s estate plan. They created wills several years ago, but executed no other documents. The client was concerned as to who would make medical and financial decisions on their behalf if they could no longer do so.
A will, alone, does not designate an individual to act on another’s behalf for medical and financial decisions. There is also a common misconception that a spouse may automatically act on behalf of another spouse to make medical and financial decisions, which is not accurate absent written documentation. Therefore, these clients need a Medical Power of Attorney, Financial Power of Attorney, and Release of Medical Records to ensure their concerns are addressed.
- A Financial Power of Attorney will allow the clients to appoint an Agent or Attorney-in-Fact to act on their behalf to access and manage their financial affairs if they can’t. The clients may also appoint other individuals as Successor Agents if the primary Agent becomes incapable or is deceased.
- A Medical Power of Attorney will allow the clients to appoint a Patient Advocate to act on their behalf to make health decisions when they can no longer do so. Like a Financial Power of Attorney, a Medical Power of Attorney will allow the clients to appoint Successor Patient Advocates in the event their Patient Advocate becomes incapable or is deceased.
- A Release of Medical Records will allow the clients to grant specific people access to their medical records. This allows their Patient Advocate to make informed decisions about their medical care.
Take Away: There is no “one-size-fits-all” approach to estate planning. An important aspect of crafting the proper plan is discussing your goals with an attorney to determine the best strategy for accomplishing them.