Many times clients come in and they say they want a will. Many lawyers go ahead and write up a will. However, I like to take a deeper view of your individual situation. Like the picture above, there are many paths of planning that lead to the one ultimate goal: having your affairs handled the way you want them to be and easing the burden on your loved ones after your death.
Estate Planning and Wills
One's death is usually a subject many try to avoid. Consequently, the majority of Americans today do not have a will or any plan for their interests after they die. Many people state that they just haven’t gotten around to making a will, that they felt making a will wasn’t urgent, or that they do not need a will. Many people avoid making a will because they don’t want to think about their death. But, Ben Franklin famously stated, "In this world nothing can be said to be certain, except death and taxes." -- BENJAMIN FRANKLIN, Letter to Jean Baptiste Le Roy, 13 Nov. 1789. But you should be certain to develop a comprehensive estate plan.
By not developing and maintaining a good estate plan, your loved ones may be left with the burden of handling your affairs or maybe the courts will dictate how your estate is distributed, which could be the opposite of what you truly wished. We have all heard the horror stories about family members fighting and spending months and years in court because of improper planning. You have been responsible to take care of your family during your lifetime. Why would you not take care of them after you are gone? Consequently, developing a plan to take care of your estate is very important and I can help you do that.
A question I often hear is, “How do I go about setting up my estate plan?” Generally, I like to either give or email a client an intake sheet that you can take home and fill out. You would fill out your name and contact information, name your personal representative, describe your personal and real property, and list your beneficiaries. I will then meet with you and discuss your goals, your options, describe the documents (e.g. a trust or a will) used to achieve those goals, and ultimately prepare the documents that accomplish your goals. Many times I can guide you on how to handle your accounts, property, and real property to avoid or lessen the issues related probate. I frequently advise clients to use a four tier approach: power of attorney, power of attorney over healthcare, transfer on death deed, and a will or trust.
A power of attorney is a document that allows another to act on your behalf in the event you are unable to handle your own affairs, whether it is a result of disability or simple unavailability. A health power of attorney is similar, but it covers medical issues rather than business matters. A health power of attorney can also include a living will, setting out end of life wishes.
A transfer on death deed is a document for transferring real property at death. The document must be recorded at the county register of deeds to be effective. After being recorded the deed takes effect at the time of your death. When you die, the real property listed in the deed will automatically transfer to the listed beneficiaries. A transfer on death deed is a better option to transfer property at death rather than a joint tenancy. This is due to the fact that the owners still have all of their ownership rights in the property and can mortgage, sell, or give away the property as they see fit without any input or permission from any beneficiary.
A will is a document that you use to convey your estate upon your death. The will becomes a public document through the probate process. I recommend that clients be as detailed as possible in what their wishes are. Be specific in what you want to leave to your beneficiaries. Also, a will can be changed by a codicil later or a new will can be drafted if your wishes change.
A trust is similar to a will. In fact, a will can have trust provisions in it. For example, you may want to defer the payment of money to your children or grandchildren. In such instances, a trustee is able to hold money on behalf of the beneficiaries. Another consideration is whether assets should be left to those with disabilities (thus disqualifying them from receiving benefits). In many instances, trusts not included in wills (e.g., a revocable living trust) are not public documents and are not subject to the probate process.
Each client and their situations are unique. We are happy to discuss which options are appropriate for your circumstances.
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