There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning, their estate will be distributed after death according to their States’ laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the State’s estate plan with your own. The Elderly Care Law Firm help clients create Estate Plans to make sure that they and their loved ones are taken care of they become disabled or die. A complete Estate Plan may include:
Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died "intestate" and State laws will determine how and to whom the person's assets will be distributed. Some things you should know about wills:
• A will has no legal authority until after death. So, a will does not help manage a person's affairs when they are incapacitated, whether by illness or injury.
• A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an "admission ticket" to probate.
• A will is a good place to nominate the guardians (or back-up parents) of your minor children if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle, and your children could end up with the wrong guardians.
Planning for Incapacity (Advance Directives)
Another important aspect of estate planning that should not be overlooked is planning for your own care in the event you become incapacitated and unable to make decisions regarding your care and finances. Through advance directives, you can appoint someone you trust as your agent in a power of attorney document, a health care representative to make important decisions regarding your medical treatment, and a living will directs your doctors to follow your wishes regarding life support, feeding tubes, or other heroic measures to save your life in an emergency medical situation.
1. Power of Attorney
A power of attorney is a legal document giving another person (the attorney-in-fact/agent) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to allow your agent to continue making decisions for you in the event of incapacity, then a durable power of attorney should be used.
2. Health Care Surrogate Designation
A Health Care Surrogate Designation is a document that allows your agent to act on your behalf to make medical decisions when you are unable to make those decisions yourself.
3. Living Will
A Living Will directs the provision, the withholding or withdrawal of life prolonging procedures in the event you should have a terminal condition.
Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, etc.
Trusts come in many "flavors," they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary).
Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Or they may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
The most common misconceptions about Estate planning is that a client’s “primary” focus should be saving estate taxes and avoiding probate. However, we think the primary focus should be creating a plan that matches the unique needs of the client. We have worked with newlyweds, lesbian and gay couples, single business owners, blended families, the terminally ill, and unmarried couple. It is our experience that each family, no matter how traditional or non-traditional, is truly unique and, once you get to know them, have unique needs. Our goal is to help our clients select the right people to fill the important decision making roles and make the best choices that will protect themselves and their loved ones in a crisis and after they are gone.
In addition to drafting the legal documents that make up an estate plan, we work with clients to think about how to share that plan with others and how to address and minimize potential conflict.
Estate Planning for Lesbian, Gay, Bi-Sexual and Transgendered (LGBT) Older Adults and their Families
Services and Advocacy for GLBT Elders (SAGE) estimates the number of gay Americans who are 65 and over at 1.8 million to 4 million. That population is likely to range from 2.2 million to 5.8 million by 2030. Estate planning for older LGBT adults is very important. Many LGBT individuals are more likely to be aging without the benefit of having adult children to care for them and likely to be aging alone compared to heterosexual older adults.
If a member of the LGBT community fails to properly plan, the result can be devastating to his or her self, partner and family. Having no estate plan, or relying only upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one's estate and management of one's well-being in times of incapacity. We provide direction, legal advice and advocacy on behalf of LGBT clients.