Estate Planning Definitions
What is estate planning? “I just need a simple will!”
Estate planning is a lifelong process. It is not simply the drafting of a will, trust or any series of documents. The purpose of estate planning is to assist in the accumulation, management, conservation, and disposition of your assets. Therefore, estate planning may also be better called asset planning.
The goal of the estate planning process is providing you and your loved ones with the maximum benefit during your lifetime and after your death. Issues typically addressed include:
- Saving or reducing taxes
- Avoiding probate or reducing its cost,
- Providing for incapacity
- Protecting your assets from creditors
- Assuring that your assets are given to whom you desire
- Empowering your loved ones to control your assets
If you own a business, business planning and estate planning must be coordinated!
What is a will?
A will is a written document, following the formalities of law, that disposes of your estate at your death. Some of the advantages of a will are:
- You direct the distribution of your property at your death, rather than the state of your residence directing the distribution through probate and the courts.
- By naming your executor or executrix, your loved ones, partners, and spouses can be given the control of your estate rather than others (such as undesired family members) by the laws of the state of death.
- You can set up a trust instrument to provide income and principal for the benefit of your family or others after your death.
- It eliminates some of the fighting over your estate that can involve courts and unnecessary legal fees.
- You can name the guardian of your minor children.
What happens if I do not have a will when I die?
If you die without a will, the laws of the state of your last domicile determine who gets your estate through the laws of intestacy. Typically, the estate would be given to children and a spouse, but not necessarily to whom you want. Further, you will not be able to control the disposition by use of a testamentary trust.
What is a testamentary trust?
A testamentary (versus “living”) trust can be part of your will. Unlike a living trust, which takes effect upon execution, a testamentary trust only becomes effective at your death. Such trusts frequently are designed to extend the time for controlling assets given to minor children or grandchildren beyond the age of majority (18 in most states.) They can also be used to protect the disabled and elderly. Sometimes, testamentary trusts can be used as part of a tax savings plan.
What is a living trust?
A living trust, legally known as an inter vivos trust, is effective during your lifetime. Typically, your trustee manages your assets for your benefit during your lifetime, as well as direct the distribution of assets upon your death. Testamentary trusts are frequently used to provide continuing management of your assets in case you become incapacitated. There may also be substantial tax savings.
What is a durable power of attorney?
A power of attorney gives legal authority to a person to act as your agent, or attorney-in-fact during your life and while you are competent. A durable power of attorney continues after you become incapacitated. Typically, your attorney-in-fact has authority over bank accounts and investments and may have the right to sell your property. Because the durable power of attorney is not affected by your incapacity, this may avoid the need for a court appointed guardian. Without a durable power of attorney, your spouse, partner, closest relatives, or companion will have to undergo the expensive and time-consuming task of petitioning a court for a guardianship over your financial affairs if you become incapacitated.
What is guardianship?
A guardianship is where a person is appointed by a court to take control of the assets of an incapacitated person Usually, a well-designed estate plan, with a will, durable power of attorney and living trust avoids the need for a court-appointed guardian.
What is a living will and medical decision power of attorney?
A living will, also called a health care directive, states your wishes about withholding or providing extended medical treatment when you are unable to communicate your wishes. A medical decision power of attorney appoints an individual to make your health care decisions should you become incapacitated. The living will can express your desires, whether to instruct health care providers to withhold life-prolonging treatments or even to reinforce the desire to receive all medical treatment that is available.