Ease the Burden on Your Survivors
One of the most important things you can do for your loved ones is to clearly state your instructions for final disposition of your property after you pass away. There are several documents that should be a part of any estate plan, and others that are optional. We can help you decide which of these documents you need, help you choose agents, help you decide whether probate avoidance is advisable, draft the appropriate language to make sure your wishes will be carried out, and file any necessary documentation with the court.
Last Will and Testament
This is the basic “end of life” document that takes effect the moment you pass. It nominates a person to be in charge of your estate, and spells out provisions for the people in your life whom you wish to remember. If you have minor children, this document will give instructions for who will care for them after you are gone.
Health Care Directives
Anyone who has experienced a visit to a hospital, whether expected or unexpected, has felt the anxiety of “what if I can’t make my own health care decisions?” Health Care directives allow you to relieve your loved ones of that burden by giving your instructions ahead of time. Both documents name someone you trust to make health care decisions for you if you are incapacitated. Your doctors use these documents as a guideline to help your appointed agent make decisions about your care, based upon your pre-determined wishes.
A Health Care Power of Attorney (HCPOA) is used when you are temporarily incapacitated, but are expected to recover and go home. Your agent will be able to consent to treatment, view your medical records, hire and fire medical staff, admit you into or transfer you out of medical facilities, and much more. A Living Will is used when there is no hope of recovery and death is imminent. You may request DNR orders, removal from life support, and any other measures to allow you to die naturally and with your dignity intact. It also allows you to make your wishes known regarding organ and tissue donation.
Durable or Statutory Power of Attorney
This document gives someone you trust the power to make financial decisions on your behalf, using your money. Your agent can pay your bills for you, sell or purchase property in your name, make business decisions for you, file your taxes, collect benefits on your behalf, and much more. Your agent has a fiduciary duty to act in your financial best interest. It also allows your agent to become your guardian in the event of your incapacity, thereby avoiding a potentially lengthy and expensive guardianship procedure through the Probate Court. A Power of Attorney is automatically revoked the moment you die, and your will takes over.
Survivorship Deed and/or Transfer on Death Deed
If you own real property, you may need a survivorship deed that includes specific language stating that the property is to pass automatically to the survivor(s) when one of the joint owners dies, via a simple affidavit and without passing through probate. This is very helpful to a grieving surviving spouse who will not have to worry about where they will live upon their deceased spouse’s death.
A transfer on death (TOD) deed names a person or persons who will automatically become the owner(s) of your real estate after you pass away. This is especially useful for unmarried people, but can be used with a survivorship deed also. Again, there will be no need to pass the property through the probate court. This person has no interest and is not an owner of your property at all until you pass away. It is important to note that the joint owner on a survivorship deed and/or the beneficiary(ies) you name on a TOD deed will take the property subject to any mortgages or other encumbrances.
Living Trusts are best used only in limited situations. They are useful when the grantor suspects there may be a problem with distribution of his/her estate, if the estate is especially large, if there are beneficiaries for whom the grantor wishes to provide but wants some other responsible person to manage the money, or if one of the beneficiaries has special needs.
All of the grantor’s property is transferred to the ownership of the Trust, to be managed by the grantor himself or by a Trustee of the grantor’s choosing, and is revocable or may be amended at any time until the moment of the grantor’s death, at which time it automatically becomes irrevocable. Any property held by the Trust will avoid Probate, and to complete the process, a “pourover will” will be drafted to transfer into the Trust any property that is not already titled to the Trust at the grantor’s death. Trusts are more complicated documents than simple wills, and therefore more expensive. Trusts are not necessary or advisable for everyone.