Estate planning is something that should be implemented by everyone, regardless of their age or financial situation. With some simple planning, you can ensure that:
- Your estate and financial well-being will be in good hands should you become unable to make decisions on your own; and
- When you pass away, everything you own will be distributed to the individuals or organizations that you choose.
The more prepared you are, the easier it will be for everyone involved in the process.
Without proper estate planning, your estate may be distributed in a manner with which you don't agree, potentially creating disputes over assets and creating rifts between family members.
Your goal should be to design a plan that:
- Allows you to plan for when you are incapacitated;
- Addresses estate taxes;
- Enables your estate to avoid probate; and
- Dictates how your assets will be distributed after you die.
What follows is a brief overview of the most important estate planning documents everyone should have:
- An Advance Directive for Health Care
- A HIPAA Release
- A DNR (Do Not Resuscitate Order)
- A Durable Financial Power of Attorney
- A Last Will & Testament
- A Revocable Living Trust
This document does three big things. First, it allows you to choose a health care agent to make medical decisions for you when you cannot. Secondly, it states your preferences for end-of-life care, i.e. intubation, CPR, etc. Finally, this document allows you to appoint a guardian. Your guardian can be the same person as your health care agent or someone else. But, by nominating a guardian in advance, you save your loved ones the time and expense of having to go to probate court to ask a judge to appoint a guardian to handle your affairs.
HIPAA (The Health Insurance Portability and Accountability Act) is a federal law that protects your healthcare information. A HIPAA release lets you designate trusted people to access your HIPAA protected health care information, but does not reveal your private end-of-life treatment preferences.
DNR (Do Not Resuscitate Order)
If you are incapacitated, the health care agent you designate in your advance directive is responsible for making your end-of-life treatment decisions and is guided by your stated preferences. However, if you absolutely do not want to receive CPR or other forms of life-prolonging treatment, a DNR, signed by a physician, is essential.
Durable Financial Power of Attorney
This document allows you to name one or more persons to help you handle your financial affairs if you become incapacitated. You can give this person or persons complete or limited power to act on your behalf when it comes to your financial matters.
Last Will & Testament
In your last will & testament, you can nominate an executor for your estate and designate how your real and personal property (land, houses, money, personal items, etc.) will be distributed after you pass away. It also lets you nominate a guardian for your minor children and can be a way for you to create a trust that springs into existence at your death.
Your will does not have any effect until after your death and must be probated before any distribution from your estate can be made. The probate process can be time-consuming and expensive and, as a matter of public record, lacks privacy. However, for most families, a will-based estate plan is perfectly sufficient.
Revocable Living Trust
For a larger or more complex estate, or when maintaining your privacy is a concern, a revocable living trust is a better choice as a foundational estate planning tool. A revocable living trust will allow you to plan for two important periods when good estate planning is essential:
- When you become incapacitated: A revocable living trust will allow you to choose a trustee to handle your affairs.
- When you pass away: A revocable living trust will enable your estate to avoid probate and allow your assets to be distributed to your heirs quicker and with almost absolute privacy.
Putting all of these documents in place is just the beginning of a lifetime of estate planning, not just a one time event.
Your estate plan should be reviewed at least every three years to ensure that it keeps up with any changes in the law, your personal relationships, and your financial situation.
Furthermore, your estate plan needs to be updated whenever you acquire major assets, in order to ensure that it remains properly funded.
Working with a qualified and experienced estate planning attorney can help you get all of the essential estate planning documents in place and ensure that your estate plan will work when you need it to work.