Wills, Trusts, & Estate Planning
We help clients plan for the acquisition, protection, management, and distribution of assets today and tomorrow. Through a variety of legal tools and a team of professionals (lawyers, accountants, financial advisors, and appraisers) we can assist you in creating a plan for your assets and healthcare that can grow and evolve. The variations of each legal tool are numerous and should be tailored to your specific wishes and circumstances. Here is an overview of some basic planning tools.
Last Will and Testament
A “last will and testament” (often referred to as a “will”) is a legal document by which a person expresses his/her wishes as to how his/her property is to be distributed upon death, and names one or more persons (an “executor”) to manage the estate until its final distribution. The contents and features of a person’s “last will and testament” can vary significantly and legal advice from a qualified attorney is very important. While a “last will and testament” is a very valuable document, in many instances the use of a “last will and testament” alone may not be the appropriate legal tool to accomplish the client’s objective.
A “living trust” is a legal document (often referred to as a “trust”) created during an individual’s lifetime wherein a designated person (the “trustee”) is given responsibility for managing that individual’s assets during the creator’s lifetime and for their distribution upon the creator’s death. The most common reason a client selects a “trust” as his/her primary estate planning tool is to avoid a legal process known as “probate” (a process which is required when a person’s primary planning tool is a Last Will and Testament). The second most common reason is the privacy that a “trust” provides to the creator since a “living trust” generally does not need to be filed in the public record as opposed to a “last will and testament.” There is a wide variety of “trust” types and the specific type of trust that a person creates depends largely upon the objectives of the individual creating the trust. For example, a creator might select a “revocable living trust” because of the persons age, health, revolving assets, and desire to have flexibility to directly control or manage the assets to be held by the trustee of the trust. In contrast, a creator might select an “irrevocable living trust” to protect assets from creditors or Medicaid or for tax planning reasons. Regardless of the specific type of “living trust”, said “living trust” varies from a “testamentary trust” which is another form of trust that is created through the use of a “last will and testament” upon the death of an individual.
Special/Supplemental Needs Trust
The term “special needs trust” and “supplemental needs trust” are used interchangeably and are ostensibly the same legal document. A “special needs trust” or “supplemental needs trust” is a trust created for a person with “special needs” (physical or intellectual disability) that is designed to manage assets for that person’s benefit while not compromising that person’s access to important government benefits.
There may be reasons that a person does not want an asset to be transferred by a “last will and testament” or “living trust” at the time of their death. Generally, financial assets like bank accounts, investment accounts, life insurance policies, and pensions may be transferred by the owner of the account simply naming a “beneficiary” who is to receive the specific asset upon the death of the account owner. This is a transfer that occurs at death “by operation of law” and completed by the account owner notifying the financial institution of the name(s) of the beneficiary(ies).
Inter Vivos Assets Transfers
An “inter vivos transfer” is a transfer of an asset made during a person’s lifetime. It can be contrasted with a “testamentary transfer”, which is a transfer made in a will or trust after a person’s death. There may be reasons that a person wants to transfer assets to another person during his/her lifetime. However, careful attention must be given to the tax consequences and risk associated with each transfer. There are gifting techniques that can be utilized to reduce a person’s taxable estate while also minimizing risks, but consultation with a qualified attorney, accountant and financial advisor are critical before any such transfers are completed.
An “advance directive” is a document that allows you to express your wishes regarding your health care and life sustaining treatment decisions while you are alive if you ever become incapacitated and unable to communicate. An “advance directive” helps loved ones, and medical personnel make important decisions during a crisis and is essential when creating an overall plan.
A “health care proxy” is an example of an “advance directive.” A “health care proxy” is a legal document that authorizes one or more persons to make medical treatment decisions on your behalf if you are ever incapacitated or unable to communicate while alive.
A “living will” is another example of an “advance directive.” A “health care proxy” is a legal document wherein you state your wishes regarding life sustaining measures (feeding tube, do not resuscitate order) and authorize one or more persons to take action in accordance with your wishes if you are ever incapacitated or unable to communicate while alive.
Power of Attorney
In connection with planning, a “durable power of attorney” is a powerful and effective planning tool. A “durable power of attorney” is a document that authorizes one or more persons (referred to as an “attorney-in-fact”) to manage a person’s financial matters in perpetuity after the document’s execution, even in the event of incapacitation. The appointed “attorney-in-fact” should be someone close to the principal, someone capable but also trustworthy. There are, however, decisions to be made in regards to the scope, date of effectiveness, and persons named in the durable power or attorney.