Whether you are young or old — everyone needs an estate plan. And it’s never too late to start. Please call for an appointment to create or update your estate plan. A well-designed estate plan is vital to protecting you, your spouse, children, and loved ones. By planning ahead, you will spare your family the expense, delay, and potential chaos that comes from being ill-prepared, and make sure that people who you know and trust will be able to help you in case you become seriously ill or incapacitated, and carry out your wishes after you pass. I am here to guide you through the entire process, helping you make the best decisions for you and your family to safeguard your money, property, health, and preserve family harmony.
Last Will and Testament
Everyone should have a Will, especially if there are children under the age of eighteen. There are serious risks and costs to dying without a Will. If you die without a Will, state law dictates who will receives your property and assets. If you die without a Will, your spouse may inherit as little as one-third of your total estate, and your minor children’s inheritance will be tied up in probate and guardianship proceedings. Having a Will gives you control and provides certainty. It ensures that your assets will be transferred at the end of life according to your wishes, allows you to select guardians to care for your minor children, and names individuals you know and trust — the personal representative or executor — who will be responsible for carrying out your last wishes.
Revocable Living Trust
Revocable (Living) Trusts are recommended for anyone who wants to avoid the delay and cost of probate, preserve privacy, and protect assets for future generations. Unlike a Will, which goes into effect upon an individual’s death, a Revocable Trust goes into effect immediately and allows you to manage your own financial affairs during your lifetime, but remains flexible and changeable during your lifetime. Once the Trust is created, you should transfer all of your assets into the name of the Trust, including your real estate. Upon death, as long as your Trust has been properly funded, there will be no need for probate, and the process of distributing or administering your assets and property held in the Trust is relatively simple. Your successor Trustee is required to distribute the Trust assets according to your wishes, as specified in the Trust Agreement. Unlike a Will, which is publicly filed in probate court and which exposes all of your assets and wealth to public view, a Trust is a private document, so your privacy and your family’s privacy is protected. Avoiding probate by setting up a Trust is often a wise choice, because the cost of probate usually exceeds the cost of setting up a Trust, and probate takes at least six months to finalize.
Property Powers of Attorney
A Property Power of Attorney is essential to avoid the cost and hassle of guardianship if you become incapacitated. So, it’s very important to sign Powers of Attorney while you are in good health and competent to sign legal documents. If you become seriously ill and incapacitated and you do not have a valid Property Powers of Attorney, your family will have to obtain a guardianship through the court process in order to handle your ongoing financial obligations, such as banking and bill paying, and more major financial transactions such as cashing out or changing beneficiary designations on your retirement accounts, dealing with your life insurance, selling your home, or obtaining a home equity loan or a reverse mortgage to pay for your health care and personal needs. The guardianship process can be lengthy, costly, and stressful.
Please be aware that to be most effective, Property Powers of Attorney should be carefully drafted by an experienced elder law attorney in order to protect assets and make the most of potential government benefits, including Medicaid. Avoid using simple Property Powers of Attorney that you can find online. A Property Power of Attorney is an extremely important and sophisticated legal document which should only be prepared by an experienced attorney and personalized for your specific situation.
Powers of Attorney for Health Care
A health care power of attorney allows you to select someone to make health care and end of life treatment decisions on your behalf when you are no longer able to speak for yourself. Without a written Health Care Power of Attorney in place, the state health care surrogacy laws go into effect, and that can result in having persons make important health care decisions for you who don’t know you well and don’t understand your wishes. For example, your nearest living relative may not be the person you trust the most to make life or death health care decisions for you. In addition to a Health Care Power of Attorney, I provide all clients with a HIPAA (Authorization to Release Medical Information) authorization, so that any individuals you specify may have access to your health care providers and medical records.
Asset Protection Planning
Protecting your assets from creditors and for purposes of long-term care planning is an important part of estate planning and elder law. If you currently have creditors or have reason to think you may be sued in the near future, it is likely too late for asset protection planning. However, if you plan in advance, there are simple ways to protect assets from creditors. For example, I recommend that married couples take the following simple precautions for asset protection purposes:
- The primary residence should be owned as “tenants by the entirety”
- Couples should keep the bulk of their assets in separate investment and bank accounts
- Couples should maintain separate credit cards
- Do not charge business expenses on personal credit cards — keep all business accounting separate
- Use Limited Liability Companies (LLCs) to operate your small business, and own your rental property — even if it’s just a two-flat
- Purchase sufficient liability and umbrella insurance