There are many different legal strategies you might consider implementing as you design your estate plan. Regardless, there are a handful of “must have” estate planning documents you must create before anything else.
You should have: (i) a will – everyone needs a will; (ii) a living will for decisions concerning treatment when you cannot make or communicate your own wishes; (iii) financial and health care powers of attorney authorizing “agents” you know and trust to take care of your financial matters and make your health care decisions when you are unable to do so yourself; and (iv) a legal authorization that allows a loved one or friend to access your medical information. Additionally, based on your situation, a trust may also be necessary to manage, protect and eventually distribute your assets.
A Will. To avoid having your assets become subject to intestate succession and distribution according to the state’s wishes, you need to have a Will that complies with the laws of your state and has been signed and executed according to your state’s execution requirements. This usually requires your signature, the signatures of two witnesses, and sometimes, notarization. If you have a Will, but it doesn’t comply with all of your states legal requirements, you will be deemed by the courts to have died without a Will and the laws of intestate succession will apply to the disposition of your assets after your death.
Your Will is the document that tells the courts how to handle and distribute your assets after you pass away. Having a Will that fully complies with your states laws is a good start, but it’s only one piece of the estate-planning puzzle. A good estate plan will also include instructions for handling your financial and healthcare decisions if you become incapacitated and can’t speak for yourself before you pass away.
A Living Will. A living Will states your wishes with regard to the withholding of medical treatment when you have an end-stage condition or if you are in a persistent vegetative state. Without executing a Living Will to let your family and doctors know what your wishes are, you may be kept alive indefinitely when you may have preferred to pass away comfortably and quietly. Most states have statutes that provide specific language that must be used in the Living Will.
A Durable Power of Attorney. The Durable Power of Attorney is a document that allows you to give authority to another person (called your “agent”) to take care of your property and financial issues for you if you should become incapacitated and you’re unable to act for yourself. This document is said to be “durable” because it remains effective during your incapacity, however, it terminates when you pass away. The Durable Power of Attorney gives your agent the power to act on your behalf in any number of situations determined by you. For instance, you could give your agent the power to purchase and sell property, sell your vehicle, pay your bills, authorize repairs to your home, file your taxes, and hire accountants and attorneys, to name just a few examples.
Again, each state has specific statutory language that must be used in this document to insure that your Durable Power of Attorney is effective. Without the required language, it’s not worth the paper that it’s written on.
A Healthcare Power of Attorney. The Healthcare Power of Attorney is much the same as the Durable Power of Attorney, except that you give another person (called the Healthcare Surrogate) the authority to make healthcare decisions for you if you’re not able to speak for yourself. This is different than the Living Will though. The Living Will only addresses withholding life prolonging medical treatment if you have an end stage condition or you’re in a persistent vegetative state. The Healthcare Power of Attorney addresses all other healthcare situations when you are unable to speak for yourself.
A HIPAA Release. Most people are surprised to find out that almost no one other than a spouse or a parent or guardian of a minor child is allowed to receive any of their healthcare records or information from healthcare providers without a HIPAA release. In a HIPAA release you name all of the people that you want to have access to your medical records. It works in conjunction with the Healthcare Power of Attorney to allow your Healthcare Surrogate to make informed healthcare decisions on your behalf. At a minimum, you should have a HIPAA Release executed in the name of the person to whom you’ve granted a Healthcare Power of Attorney. Without such information it becomes difficult or impossible for your Healthcare Surrogate to make informed decisions about your healthcare.
Trusts. These come in all sorts of shapes and sizes. Generally speaking, a trust is a legal entity with at least three parties: the creator of the trust, the trustee, and the beneficiary. With most “revocable living trusts,” you play all three roles. Depending on your circumstances, there could be advantages to establishing a trust. The most common advantages are avoiding probate and protecting your minor children. This can help streamline administration of your estate should you become incapacitated and upon your death, keeping your plans private and your family protected in the process. Some irrevocable trusts may also protect trust assets from creditors. For example, trusts established under a will or revocable living trust can protect the inheritance for loved ones from squandering their inheritance, from divorce and from lawsuits and bankruptcies.
That depends on a great many factors. Consult the experienced estate planning attorneys at Mastry Law, P.A. to thoroughly review your situation and your objectives.