Estate planning allows you to designate what happens to your assets after you die. There are two main methods of making your wishes known to your heirs--wills and trusts:
A will is a document that clearly spells out who is to receive what assets after your death. In addition, you can use a will to make provision for who will be guardian of any minor children you may have. You should consult with the person or persons you wish to act as guardian, to make sure they agree to serve, before making your will.
Before you make a will, you also need to choose someone to act as executor of your estate. Among the tasks the executor performs are seeing that all debts and taxes are paid first, and then that the remaining assets are distributed according to the requirements of the will. You should choose a person you know to be honest, reliable, well-organized and who has a good "business sense." You should ask the person's permission before writing the will.
In addition to designating what happens to your assets after your death, a trust can also provide for management of your assets in case you are disabled, either permanently or temporarily. As much of your property and other assets as you choose are placed in the trust. From then on, you manage the property as trustee, making the same decisions you would otherwise. In the trust, you name a successor trustee; this is the person who will take over management of your assets if you die or become incapacitated. Your successor trustee should be someone you know well and who is honest, reliable, well-organized and has a good "business sense." You should ask the person's permission before writing the trust.
One simple way to avoid most probate issues, especially the cost of probate, is to use transfer on death instruments. Grantee beneficiaries have no ownership in the property during your lifetime. You may do anything you choose with the property without consulting with or getting the approval of the grantee beneficiaries. When you die, however, the beneficiaries receive the property immediately, without waiting for your will to be probated. Real estate, automobiles and other types of assets may be transferred in this way.
Real estate can be transferred to your heirs quickly and easily by a Transfer on Death deed. You provide us with the legal description of the property (from an earlier deed or title insurance) and tell us how you want the property divided upon your death. We prepare a Transfer on Death deed and file it with the Register of Deeds. Your heirs receive legal title to the property immediately after a Certificate of Death is filed, without waiting for probate to be completed. This is generally a much less expensive legal procedure than probating a will can be.
You can also use Pay on Death instruments to transfer other assets such as: bank accounts, certificates of deposit, stock & bond accounts, and car titles. Retirement accounts, life insurance policies, and annuity accounts may be transferred by designating a beneficiary (or beneficiaries) and alternate beneficiaries.
Other related issues to consider:
Signing a Durable Power of Attorney for Financial Decisions gives someone else the legal authority to act on your behalf. The word "attorney" does not mean a lawyer, it just means someone authorized to act on your behalf. You can designate anyone to be your "attorney in fact." Your attorney in fact can be given authority to perform many financial tasks, including:
You should choose someone you can trust, who will have your best interests in mind, and will keep accurate records.
You can also give your attorney in fact the power to make health care decisions for you, should you be incapacitated. This means that your attorney in fact will decide what treatment you will receive if you are unable to make that decision for yourself. Again, you should choose someone who knows you well, and make sure that person knows what you would choose for yourself and will act the same way you would for yourself.
You can also combine a Financial Power of Attorney and a Durable Power of Attorney for Health Care Decisions into one complete document.
When a person becomes incapacitated, it may be necessary to appoint a conservator. Usually someone who has signed, or is capable of signing, a durable power of attorney will not need a conservator. The conservator has the power to make many financial decisions, and must keep accurate records which are filed annually with the Court.
Call us today to set up an appointment to discuss your estate planning needs.
This page was last updated on 9/3/08
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