Most of us at some time in our lives have been told by a spouse, relative, friend, or professional advisor, that we should write a Will. However, we have no real idea as to why it is so important to have a Will. The foundation of any estate plan is an individual’s Will. Generally, a Will allows you to name the guardians of your minor children, specify who will serve as executor, and leave property to specific individuals. Additionally, a Will can designate your executor to serve independently and without bond. This designation alone can save your estate from significant financial costs.
In addition to a Will, a client should consider trusts, living wills, powers of attorney, and a number of other documents as listed below. Our office advises our Clients in explaining each of the documents below and how each document meets the Client’s estate planning needs.
A further discussion of each document may be found below.
Wills and Trusts
A Will is a legal instrument that states how a testator’s property is to be distributed at death. The Will appoints someone to handle the Testator’s final affairs after death. Additionally, the Will names the recipients of the testator’s property, and designates the individual(s) who will manage the property for beneficiaries and, when appropriate, minor children.
In some cases, a Client’s assets are great enough that they require consideration of various alternative to avoid estate taxes at death. In these cases, the use of a Will that incorporates tax planning provisions is most appropriate. These provisions allow the Testator to use the assets during their lifetime, but upon death, the assets are distributed in a manner consistent with the tax-savings goal of the tax provisions in the Will. Often the tax savings goal of the Client is fulfilled by establishing a Trust in the Will. A Trust is a method by which property is held by one party (the Trustee) for the benefit of another (the beneficiary). Additionally, a Trust is an effective way of managing property for the benefit of minor or incapacitated persons who are incapable of managing their own financial affairs.
HIPAA Authorization and Release
A HIPAA Authorization and Release authorizes your agent to access your medical records in the event you are unable to give your authorization. This document takes effect immediately, and can be given to any health care provider.
Appointment of Agent for the Disposition of Remains
An Appointment of Agent for the Disposition of Remains lists special instructions whether you wish to be buried, or cremated. You may list any burial instructions as well.
Declaration of Guardian
A Declaration of Guardian is properly seen as a backup document. It is there to make sure that the other documents, Statutory Durable Power of Attorney and Power of Attorney for Health Care, are not unnecessarily canceled and to make sure that persons you do not want appointed are disqualified. The Guardian of the estate is responsible for managing all assets, reinvestment, collection of income, and payment of expenses. The Guardian of the person handles personal affairs, such as where you will live. The same person usually serves as both guardian of the person and guardian of the estate.
Declaration of Guardian for Minor Children
A Declaration of Guardian for Minor Children appoints an eligible person to be guardian of a parent’s child or children. The Guardian of the estate is responsible for managing all assets, reinvestment, collection of income, and payment of expenses. The Guardian of the person handles personal affairs, such as where you will live. The same person usually serves as both guardian of the person and guardian of the estate.
Directive to Physicians
A Directive to Physicians is often referred to as a “living will”. It is used to instruct your physician to withhold, withdraw, or continue artificial life-sustaining procedures in the event of a terminal condition. This directive takes effect only after your physician determines that you are terminally ill, incompetent, and that death is expected within six months without application of artificial life-sustaining procedures.
Power of Attorney for Health Care
A Power of Attorney for Health Care gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. The agent may exercise his or her authority only if your attending physician certifies that, in the physician’s opinion, you lack the capacity to make health care decisions. You may revoke the power of attorney at any time, orally or in writing, and regardless of your mental state.
Statutory Durable Power of Attorney
A Statutory Durable Power of Attorney grants authority to a designated agent to manage your property on your behalf. It can be distinguished from the power of attorney for health care, which relates to health care decisions rather than to decisions concerning the management of property.
Special Needs Trusts
The basic purpose of a Special Needs Trust (also known as a supplemental needs trust) is to provide benefits, by means of a trust, to a beneficiary who would otherwise lose eligibility for public assistance (Supplemental Security Income or Medicaid). The beneficiary is one who qualifies for public assistance by reason of some disability that makes that person unable to hold meaningful employment and with insufficient assets to provide adequate support.
Our Will legal fees are quoted as package prices. The package fee includes an initial in-office consultation to discuss the estate, drafting the following documents: Last Will and Testament, HIPAA Authorization, Appointment of Agent for the Disposition of Remains, Declaration of Guardian, Directive to Physicians, Power of Attorney for Health Care, Statutory Durable Power of Attorney; and the signing appointment in office. The attorney will determine during the initial consult whether a basic or advanced estate is necessary. Please contact our office for an estimate.