The Essentials from an Estate Planning attorney
As a financial planner, I give specific advice on people's personal finances, including estate planning. But as I'm not an attorney I can't go too deep without getting out of my depth - that's why I surround myself with attorneys who can speak freely about these matters. The following is a guest post from Michael Brennan, an attorney based in Grayslake, IL.
Chances are at some point or another you’ve thought about the topic of estate planning. Whether it was talking about writing a will or how to plan for retirement, it’s a common discussion for most adults to find themselves in at some point.
Whether you are married, in a committed relationship or happily single, these are the essential estate plan documents you should have.
A Durable Power of Attorney for Healthcare (including HIPAA Release)
A power of attorney is a document in which one individual (the “principal”) grants another individual (the “agent”) the authority to act on his or behalf, often according to a specific list of directions.
When it comes to medical decisions, a durable power of attorney, permits the agent to make medical decisions relating to treatment on behalf of the principal and, properly drafted, it allows the agent access to the principal’s important medical records which may be necessary to consider when determining a course of treatment.
Without a valid durable power of attorney for healthcare in place, medical personnel have no obligation to follow anyone’s wishes regarding treatment or consent except for the patient’s. For married couples, this may not be as much of an issue as it is for other people, but it’s still important to cover your bases.
By executing a valid power of attorney, an individual can appoint a trusted person—whether a friend or family member—to make heath related decisions if they themselves are unable to do so. The power of attorney ensures that your chosen agent will be able to take any action which you would be permitted to take on own behalf. Many states offer statutory forms that can be used if you know what you’re doing, or an attorney can draft one up very quickly with a few pieces of information.
A Durable Power of Attorney for Finances and Property
With a valid durable power of attorney for finances and property an agent should be able to access the principal’s bank accounts and financial records, pay rent, utilities and credit card bills, manage investments and loans and so on. Without one, financial institutions like banks, utility providers or even landlords typically will not permit an individual that is not named on an account to access its funds or information. Of course, in the context of marriage, this is not as much of an issue as it sometimes is for single individuals. Nevertheless, it’s good to make one part of your plan to avoid any surprises down the road.
Will
If you want to direct where your possessions will go if you die, then it’s important to have a last will and testament, or a will for short.
If a person dies without a will, state law determines how the assets will be distributed. That will mean less money and more stress for the heirs—an unpleasant prospect for family members already dealing with the tragic death of a young person.
In addition, married couples enjoy a number of benefits when it comes to passing property upon death. While others need to consider the tax implications of leaving amounts over a certain threshold, spouses can leave unlimited assets to each other in a will. That means that upon the first death, substantial gifts left to an inheriting spouse will not be subject to hefty taxes. However, it’s important to involve an attorney here, as the death of the second spouse may bring with it a number of unwanted tax consequences. Strategic drafting of a comprehensive estate plan can fully utilize these benefits while also eliminating any unwanted consequences.
If you are married and do not have any children, then 9 times out of 10 your estate will go 100% to your spouse. If you or your spouse instead want to leave certain property or a little bit of money to other loved ones, then you’ll need a will to override the default intestacy laws. Unmarried individuals are always advised to have a will as state laws otherwise dictate where your property goes upon your death. This may not be to whom you would want to gift it.
Living Will
A living will is a legal document used to indicate which treatments you do or do not want applied to you in the event you either suffer from a terminal illness or are in a permanent vegetative state.
For example, you may indicate whether the use of feeding tubes or other life-prolonging equipment should be continued, or whether, at a certain point should be discontinued if there is no chance of recovery.
A living will does not become effective unless you are incapacitated; until then you'll be able to say what treatments you do or don't want. Without a valid living will, doctors may or may not rely solely on the wishes of your spouse when determining what course of treatment to pursue.
Drafting a living will is important so that nasty disagreements amongst family members don’t occur if something happens to you.
Revocable or Living Trust
A living trust, which may also just be referred to generally as a revocable trust by your attorney is a tool which can be used by practically anyone to create efficiency and additional protection in an estate plan. A Revocable Living Trust, in its simplest sense, is an entity created by an individual (or multiple individuals) during his or her lifetime to hold assets which will be managed by a trustee according to a specific set of rules, directions and terms. As the name suggests, a revocable living trust is revocable or amendable by the grantor (the individual that creates the trust) during his or her lifetime.
When a revocable living trust is incorporated into an estate plan, it typically serves as the main vehicle through which assets are transferred upon death. For example, if a husband and wife transfer their home, investments, bank accounts and other property into the trust while they are living, upon the death of the first spouse, everything will automatically flow to the surviving spouse through the trust. Upon the death of the second spouse, the trust will instruct a successor trustee how all of the assets should be distributed and to whom they should be distributed. There are a number of benefits of using a revocable living trust, including the minimization of necessary probate procedures, asset management in the event of a disability, confidentiality, continuity of management after death and coordinated management with a spouse's property.
Appropriate beneficiary designations on retirement (and other) accounts
There are a number of things that a will won’t pass along to beneficiaries, including retirement accounts, insurance policies and other financial instruments that are governed by separate contracts between you and the provider.
In order to ensure that these items go to the correct individuals when you die, it’s important to name those individuals as the beneficiaries of any applicable policies or accounts.
Married couples also enjoy some additional benefits when it comes to planning for the disposition of retirement accounts, if done correctly. For example, a spouse inheriting an IRA will be able to roll the finds over to his or her IRA if appropriate steps are taken which will permit the surviving spouse to space out distributions over a longer period of time.
If changes are necessary you should make sure to file a new beneficiary designation form with the company.
Michael F. Brennan is an attorney at the Virtual Attorney™ a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning and small business legal needs. He can be reached at michael.brennan@mfblegal.com with questions or comments, or check out his website at www.thevirtualattorney.com.
The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For specific legal advice regarding a specific legal issue please contact me or another attorney for assistance.
Sections of this article can be found at these places:
http://thevirtualattorney.com/blog/estate-planning-made-simple-what-every-married-couple-should-know