The following is a summary of the essential estate planning documents needed by most individuals and some basic tips for every client:
DURABLE POWER OF ATTORNEY - authorizes an individual to make legal and financial decisions for you in the event that you are incapacitated or incapable of making these decisions on your own. This allows one to gift assets, make investments decisions, and sign tax returns.
Tip #1: This document should be given to whoever you elected or they should at least know where it is if needed or have my contact information. Some financial institutions have their own form which may have to filled out in addition to your Power of Attorney. Since you are mostly home, please check with each of your financial institutions (you may want to wait to check your account balances).
LIVING WILL & HEALTH CARE PROXY - A living will is an important legal document that declares what you desire for medical treatment is in the event that you become incapable of expressing your wishes. A health care proxy grants another person the power to make medical decisions in the event that you are incapacitated or incapable of making these decisions for yourself. It typically waives the HIPPA privacy rules so that one can successfully obtain the pertinent information.
Tip #2: A copy of this document should be given to your primary care doctor and your health care agent. DO NOT sign the health care form at your doctor's office or in the hospital. It will revoke these documents and are never as comprehensive as the ones we create for you. They typically do not contain a living will. Also, people over the age of 18 should sign this document, coupled with a power of attorney, if heading off to college, traveling, or just to be safe.
LAST WILL AND TESTAMENT - A Will allows you to name a personal representative (formerly known as an executor) to manage the administration of your estate. This is also the instrument used to appoint legal guardians for your minor children or other dependents and typically lists who receives your tangible and real property.
Tip #3: Always remember that a Will is probate which is a costly, time consuming, and public process. They are ways to avoid probate if ALL assets are titled correctly, owned jointly, or have a beneficiary designation. However, the best way to avoid probate is typically to create a trust. We stand ready to assist you in avoiding probate. It is almost never necessary.
TRUSTS - Trusts are a critically important estate planning tool used to bypass the expensive and time-consuming probate process. Trusts can also either eliminate, minimize and/or defer estate taxes. A trust is a legal document created by a Donor or a Trustee (you) to hold assets that will benefit another person or entity. When you create a trust, it sets forth and establishes a mechanism to hold your assets and sets forth how one's assets will be distributed to beneficiaries upon death.
Tip #4: It is never enough just to create a trust, sign it, and forget it. One must periodically review what assets are owned by the trust and how the assets will be ultimately distributed. One should also review if the Trustee(s) named are still appropriate. In addition, Retirement Accounts and Life Insurance Beneficiary Forms should be periodically reviewed to make sure they are accomplishing one's goals since they typically pass outside of your trusts.
As always, if you have a question or wish to engage in a more in-depth discussion, please contact Barry Wilensky at (781) 429-3105 or at barry@cutlerlegal.com.
