The phrase “estate planning” can conjure up images of fabulously wealthy people deciding how to pass on their vast riches and sprawling holdings. But that’s not the real world. All of us can benefit from good estate planning. It can make the distribution of our assets after death a lot easier for heirs. And it can also address issues that may come up at the end of life.
The areas estate planning addresses are complex, covering law, finance and even medicine. No one should try it alone and no one should approach the subject unprepared. This estate planning checklist outlines things you can prepare to discuss with your lawyer.
Power of Attorney
One of the most important decisions you will make in the estate planning process is who to designate as power of attorney. That’s the person you will delegate to handle certain affairs in the event you become mentally incapacitated. You need to identify someone for both medical and financial matters and it can be a different person for each area.
It’s hard to think about scenarios like some of the ones we’re about to describe, but we must. They will help you to think about the decisions that are part of an estate plan.
Scenario 1–You have Stage 4 cancer, diagnosed as terminal and are in the hospital. Your mental capacities have essentially shut down. Your descendants have been told it’s only a matter of time before you pass away. Do you have any wishes for medical treatment? Do you want measures taken to keep you alive or do you prefer to “let nature run its course?”
These are decisions that adult children of dying parents can fiercely battle over. Not only do you risk them reaching a decision that is something other than what you wanted, you risk lasting bad blood between them. A good estate plan makes your wishes crystal clear in writing. And if there’s any gray area, one specific person is identified to be the decider. This person is your power of attorney for medical decisions.
Scenario 2–You suffer a stroke. You live through it but can no longer live independently. What’s more, the stroke caused enough mental damage that you really can’t handle your finances anymore. What happens next? What sort of assisted living facility will you go to? If you have a stock portfolio, who is going to manage it? If you’ve been helping one of your adult children who is in some financial need, or had planned on helping one of your grandchildren pay for college, what happens now?
If there is no plan in place, chaos in the family can easily ensue. And unlike our medical example above, this one can last for at least as long as you’re alive. The answer is to appoint a power of attorney for financial affairs and to put any wishes you can think of into writing.
Now, if your plan was to help one of your financially disadvantaged children for another year, but then insist they be ready to again be independent, that will be clearly known. If you want to pay college tuition for any grandkids, that will be clearly known.
We can’t guarantee that your descendants won’t fight over how to handle things. But we can say that the odds of them doing so are lessened. And, more important, we can say that the odds of you getting what you want with your own assets is now in position to happen.
Another hard scenario to think about is for parents with kids who are still at home…what if you pass from this earth while they are still at home and dependent on you for support? Who do you want to take care of them and continue raising them?
To call this a tough decision is to understate its difficulty. It must be someone whose character and integrity you trust completely, and who has the resources–both financial and in terms of time–to take on a huge new responsibility–and who isn’t already very busy with children of their own.
That could be your siblings or, if they are young enough, your parents. Those are the people who might end up taking custody in any case. But it’s also possible that custody will end up with someone you aren’t entirely confident about.
Even worse, the lack of a clear statement of your wishes will involve the state making the final decision. If no one meets the high standards necessary to take on new children, your kids could end up in the foster care system. That alone is reason enough to get an estate plan in place.
Will or Living Trust?
The key decision you will need to make is whether to structure your estate plan as a will or a living trust.
In a will, you name your beneficiaries and decide what should go to each one of them. If one child gets your house while the other inherits the stock portfolio, this is where you lay that out. If there are any special heirlooms you want designated for a certain person, your will can make that clear. Your will is a public document, and it requires a probate court to finalize it after your passing. At the conclusion of probate, your heirs get what is due to them.
A trust is geared at avoiding the probate process, with its time delays, associated costs and public access to your last wishes. It would seem, at least on the surface, that the trust would be the way to go. It may well be for you, but there are other factors to be considered.
There is more cost to establishing a trust on the front end. It’s not because of any fees. It simply requires funding up front. Unlike a will, which distributes the assets you leave behind, a trust needs money up front and then ongoing maintenance to be viable. A trust is a more complex financial instrument, even after it is established. Choosing this option makes it all the more important to make a good selection for your financial power of attorney.
Common Estate Planning Mistakes
The decision on how to distribute everything you own and make crucial decisions on who to delegate legal powers to are imposing. It’s not surprising that mistakes are made. To help you avoid as many as possible, here are some of the most common…
- Not listing household items–When you sit down to talk with your lawyer, you’ll want more than simply a list of savings accounts, property, and stock ownership. Those are all essential prerequisites, but what about the painting that one of your kids has a particular affection for, or the boat that another one knows how to operate better than the others? You may well have particular ideas in mind on how to pass down everything. Get a thorough list in place.
- Neglecting other financial assets–Do you own any copyrights or trademarks that need to be dealt with? What about life insurance? Look at who your beneficiary is. This may need updating. Not only will it impact payout amounts on the policy itself, but if there’s any uncertainty, courts may see the named beneficiary as indicative of your wishes. If it’s been 30-plus years since you looked at it, now’s the time to refresh the policy.
- Lack of communication–Have you talked to the person you want to name as power of attorney for finances or healthcare on an in-depth basis about your wishes? How about talking with your children about your plans for how to pass along your assets? Communication with all those impacted by your estate plan makes it more likely your wishes will be understood. It’s also a good idea to write out a letter of intent. This is a document that, while not legally binding in of itself, courts will give credence to in the event of a later dispute.
- Not having a backup plan–What if, ten years after you implement your estate plan, your power of attorney dies or becomes incapacitated? Connecting their misfortune to your own estate plan doesn’t occur to you. If this isn’t addressed, you’ll be back to square one if you end up incapacitated yourself. The best way to handle it is to name backups for both your power of attorney and your beneficiaries.
Estate planning is vital to your life and that of your family and friends. It’s an area that requires deep thinking about topics that are both emotionally difficult and legally complicated. It’s an area that Casey, Simmons & Bryant, PLLC, can play a valuable role in helping you craft a plan that leaves your legacy as you would wish. Get in touch with us today. You can send us a message here online, and we are also happy to take calls at (731) 256-0023.