Frequently Asked Questions

The short answer to this question is that you already do have an estate plan, even if you do not prepare one for yourself. The State in which you live has prepared an estate plan for you called “Intestate Succession.” Your State’s plan controls who will receive your home, investments, bank accounts and other assets at the time of your death, who will be in charge of distributing your assets, and who will care for your minor children. Fortunately, you have the choice of creating your own personalized estate plan designed to meet your goals. However, you can only replace the State ’s plan by creating your own personal estate plan.

Estate plans come in two (2) basic flavors: Trust Estate Plans and Will Estate Plans. Trust Estate Plans (often called “Revocable” or “Living” Trusts) are primarily used in any of the following situations: 1. You own property that will have to go through probate at the time of your death (any real estate, investments, bank accounts, or other property owned by you individually), and you want to avoid having that property go through probate. 2. You have children or grandchildren that you do not want to receive their inheritance when they turn 18. The inheritance can be held in a Trust to be used for college or trade school education, or until the child or grandchild reaches a more mature age. You might, also, use a Trust to manage an inheritance for adult children who you do not think are capable of handing their inheritance. 3. You have a blended family, and you and your spouse want to preserve your estates for your respective children. Trusts can be created to maintain each spouse’s control over his or her assets.  4. You have a “special needs” child who is receiving needs-based government benefits. A Trust can be designed to protect those benefits while still providing additional support for your child.  5. You are married and have a combined estate that is large enough that it will be subject to either Federal Estate Tax (more than $5.25 Million in 2013), or the applicable state inheritance or estate tax in your state. If any of these circumstances apply to you, then you should consider having a Trust Estate Plan. A Will Estate Plan is for individuals who have decided that it is OK for their property to go through probate at the time of death. Perhaps you do not own much property that will have to go through probate at the time of death. Both Plans include both Durable Power of Attorney and Power of Attorney for Health Care, which are intended to avoid Probate Court involvement in the event of your incapacity.

We believe that an estate plan is not complete unless it addresses issues involved in the event of incapacity, as well as death. Therefore, both our Will Estate Plans and our Trust Estate Plans include Durable Powers of Attorney (for management of assets) and Powers of Attorney for Health Care (for making heath care decisions). Each of our Trust Estate Plans, in addition to the Trust or Trusts, also includes “Pour Over” Wills, and Certificates of Trust.

The Will Estate Plan includes a Will, Durable Power of Attorney and a Health Care Power of Attorney The Trust Estate Plan includes a Trust, Will, Durable Power of Attorney, Health Care Power of Attorney, and a Certificate of Trust

If you have a Trust Estate Plan, it will be necessary to “fund” your Trust in order to accomplish your goal of probate avoidance, asset management, and Estate Tax reduction (where applicable). Funding your Trust is simply the process of transferring ownership of your assets to your Trust. It might also be necessary to change beneficiary designations on life insurance policies, annuities, Individual Retirement Accounts, Pension Plans and any other programs that have beneficiary designations. While your Trust Estate Plan does not include our assistance in funding your Trust, it does include a Trust Funding Guide. We will, also, include information about additional services that can be provide to you, including Trust Funding Assistance. Your estate plan will also include a Power of Attorney for Health Care. You will have to make arrangements to have the named Patient Advocate sign the acceptance of appointment.

A good analogy for a Revocable Living Trust is a box with a list of instructions on the side. The instructions (i.e., Trust Agreement) indicate who is to be in charge of the box (i.e., "Trustee"), and who is to receive anything that is left in the box at the time of your death (the "beneficiaries"). Normally, you will name yourself as the Trustee during your lifetime, and will name someone else to be the Trustee after your death ("Successor Trustee"). The Trust Agreement also sets forth the rules under which the Trust is managed. During your lifetime, you will be in charge of the Trust, and are entitled to receive any benefits from the Trust. This means that you are in charge of managing and spending the Trust assets. After your death, or upon your disability, your Successor Trustee will be responsible for managing the Trust assets in accordance with the rules contained in the Trust Agreement. It is important to remember that a Revocable Living Trust can be either amended or revoked in its entirety. Any amendment has to be in writing, and should be drafted by a qualified estate-planning attorney. You can also add assets to the Trust or remove assets as you wish. Upon your death, the Successor Trustee that you have named in the Trust will manage and distribute the remaining Trust assets according to the directions set forth in the Trust Agreement.

Your Last Will and Testament (referred to as a "Will") controls the distribution, through probate, of property that you own in your own name at your death. In your Will you name the person who will be responsible for managing the probate of your estate (the "Personal Representative"), as well as who will receive your estate ( the "devisees"). If you have minor children, you will also name the person they will live with (the "Guardian") and the person who will care for what they inherit from you until they turn 18 ( the "Conservator"). Your Will does not control distribution of property that is subject to a beneficiary designation (i.e., life insurance and IRAs) unless the designated beneficiary is your estate or the designated beneficiary fails to survive you. It also does not control distribution of any property that is jointly owned with another. Remember, having a Will does not avoid probate. Rather, your Will provides direction to the probate court for distribution of your property. 

A Durable Power of Attorney authorizes the person you have named to manage your personal and financial affairs in the event that you become incapacitated. It is used to avoid the necessity of having a Probate Court appoint a Conservator to manage your assets. 

A Power of Attorney for Health Care authorizes the person you have named to make decisions concerning your medical treatment, but only if you are unable to communicate these decisions for yourself. A copy of your signed Power of Attorney for Health Care can be provided to your physician to be kept in your medical record file.

A Living Will is a document in which you indicate your end of life wishes, such as whether or not your life is to be prolonged by providing or continuing life-sustaining treatment if certain medical conditions exist, such as in an irreversible coma or persistent vegetative state. In some states these wishes will be included in the Power of Attorney for Health Care. 

Unless you are an attorney, you are likely considering preparing your own estate plan, rather than hiring an attorney, to save money. Cost, however, should not be the only consideration because a poorly prepared estate plan may eventually prove to be much more costly than a properly prepared estate plan. And, problems with your estate plan may not become apparent until after you have died. An attorney, because of his/her training and experience, is able to spot and address issues that you do not know about. With our EstatePlansDirect.com service, an attorney will be in contact with you if clarification is needed about the information that you submit. And, will be available to answer questions that you might have about your estate planning documents once they have been prepared.

The fact that you are single does not, alone, determine whether you should have a Will Estate Plan or a Trust Estate Plan. Do you have children? How large is your estate? Do you wish to avoid probate? As noted elsewhere in these FAQs, Trusts are normally used when you want to manage your estate for minor children, or when you wish to avoid property that is in your name alone from having to go through probate. A Will Estate Plan is for individuals who have decided that it is OK for their property to go through probate at the time of death.

Having life insurance does not eliminate the need to have an overall estate plan. The life insurance should be considered to be one part of the total plan. Through your Will or Trust you will be determining where you assets other than your life insurance will go (i.e. bank accounts, investments, house, etc.). Also, many clients will use a Trust to receive their life insurance proceeds so they can be managed for their minor children beyond age 18. Finally, your life insurance does not appoint who will care for minor children (i.e. guardians) or replace the need for a Durable Power of Attorney or Power of Attorney for Health Care.

Attorneys are bound by professional standards of confidentiality. In the course of providing estate planning services we receive significant personal information from you. You should know that all information that we receive from you is held in confidence, and is not released to people outside oour firm, except as agreed to by you, as required under an applicable law, or as we need to provide to those who assist us with office services or attorneys and their staff who we might refer you to. We retain records relating to professional services that we provide so that we are better able to assist our clients with their professional needs and in some cases, to comply with professional guidelines. In order to guard a client’s nonpublic personal information, we maintain physical, electronic and procedural guidelines that comply with our professional standard. For more information about this topic, please read our Privacy Policy.

Trust Estate Plans (often called “Revocable” or “Living” Trusts) are primarily used in any of the following situations: 1. You own property that will have to go through probate at the time of your death (any real estate, investments, bank accounts, or other property owned by you individually), and you want to avoid having that property go through probate. 2. You have children or grandchildren that you do not want to receive their inheritance when they turn 18. The inheritance can be held in a Trust to be used for college or trade school education, or until the child or grandchild reaches a more mature age. You might, also, use a Trust to manage an inheritance for adult children who you do not think are capable of handing their inheritance. 3. You have a blended family, and you and your spouse want to preserve your estates for your respective children. Trusts can be created to maintain each spouse’s control over his or her assets.  4. You have a “special needs” child who is receiving needs-based government benefits. A Trust can be designed to protect those benefits while still providing additional support for your child.  5. You are married and have a combined estate that is large enough that it will be subject to either Federal Estate Tax (more than $5.25 Million in 2013), or the applicable state inheritance or estate tax in your state.