Norwood Estate Planning FAQ
What are the Three P’s of Estate Planning?
#1 – People
Who are the Important People in your life? Beginning with yourself, they also likely include your loved ones: your spouse if you are married, children and grandchildren if you have any, perhaps your parents, siblings or other relatives. Beyond these, however, “Important People” also could include charities, special causes, colleges or universities, or churches to which you are committed. For some, “Important People” could even include pets. Spend some time thinking about the impact others have had on your life. Make a list and jot notes if you like. This is where the planning process truly begins.
#2 – Property
By Property we mean your assets in general. Make a list of the assets you own or control. At this point, you do not need to identify insurance policy numbers and exact dollar values. Rather think through your assets in terms of their nature (cash, stocks, bonds, real estate, etc.); their value in thousands of dollars; and your ownership interest: Do you own assets in your name only, in joint tenancy with someone else, or through a trust agreement or some other arrangement? Be sure to include often-overlooked assets like life insurance (the death benefit, not the cash value), business interests, and any inheritance you may expect to receive.
#3 – Plans
After identifying the Important People in your life and your Property, the next step is to consider the plans you would make for those people (including yourself) and that Property in the event of your own incapacity or death.
Who would you name to make decisions for you if you could no longer do so yourself? Would the same person handle your finances and your personal and health care decisions? Who would care for your minor children? How would you distribute your assets to your heirs? Would you prefer to spare your heirs the potential cost and hassles of the probate process? Would you like to minimize the impact of estate taxes … or maximize the impact of a charitable bequest? Is there someone in your family with special needs for whom you would like to provide? Is there someone who perhaps should not receive a great deal of (or any) money without some outside oversight?
What is Probate?
Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.
What is Joint Tenancy with Rights of Survivorship? (in some states “Tenancy by the Entirety” when between spouses)
This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.
What is a Will?
The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.
What is a Living Will?
Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
What does Intestacy mean?
If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.
What are Beneficiary Designations?
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
What is a Durable Power of Attorney and when do I need one?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
What is a Revocable Living Trust?
This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.
Who Should Have a Revocable Living Trust?
Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.