ESTATE PLANNING

A cohesive estate plan provides instructions to the court, to your heirs, to healthcare providers, and to financial institutions about how you want your property distributed after your death. It also provides instructions about how you want healthcare decisions made for you if you are ever incapacitated, and who is responsible for administering your estate and caring for minor children. A typical estate plan includes a will, as well as several other documents.

A typical estate may include:

Real estate;
Bank accounts;
Investments;
Vehicles;
Life insurance policies;
Retirement accounts;
Personal property; and
Business interests.

Estate planning can address issues such as:

Who should receive your assets after your death;
How to minimize estate taxes;
Charitable giving;
Care of minor children;
Incapacity planning; and
Business succession planning.

HOW DOES AN ESTATE PLAN AVOID DYING INTESTATE?

Dying intestate means dying without a will. When a person dies intestate, their state's laws of intestate succession determine how their property is distributed. This means that the state decides who gets what, which may not be in line with your wishes.

Intestate succession laws generally provide that property passes to the closest living relatives of the deceased. The exact rules vary by state, but in general, a spouse and children are first in line to receive property. If the deceased has no surviving spouse or children, property passes to parents, siblings, or more distant relatives.

An estate plan, including a will, allows you to decide who gets your property and under what conditions. Without a will, you have no say in how your property is distributed after your death. A will also allows you to name an executor, who is responsible for administering your estate, and to name a guardian for any minor children.

FACTORS TO CONSIDER WHEN BEGINNING ESTATE PLANNING

Estate planning is not a one-size-fits-all process. The appropriate estate plan for you will depend on a number of factors, including:

Your state's laws;
Your life stage;
The size and complexity of your estate;
Whether you have minor children;
Whether you have a spouse or domestic partner;
Whether you have a disabled child or other dependent;
Your charitable giving goals; and
Your business interests.

Different people at different life stages will have different estate planning needs. Some general categories include:

Young Single Person: A young single person with no children and few assets may only need a simple will and a healthcare directive.
Unmarried With Committed Partner: An unmarried person with a committed partner may need to take extra steps to ensure that their partner can make healthcare decisions for them and will receive their property after their death, since the laws of intestate succession generally do not provide for unmarried partners.
Couple With Small Child: A couple with a small child should name a guardian for their child in their wills, and may want to set up a trust for the child's benefit.
Middle-Aged: A middle-aged person with a larger estate may want to consider more complex estate planning strategies to minimize estate taxes.
Parent of Disabled Child: A parent of a disabled child may want to set up a special needs trust to provide for the child without disqualifying them from government benefits.
Elderly or Ill: An elderly or ill person should focus on incapacity planning, including powers of attorney and healthcare directives.

WHAT SHOULD BE INCLUDED IN MY ESTATE PLANNING STRATEGY?

A comprehensive estate plan typically includes:

A will, which names an executor, names a guardian for minor children, and distributes your property;
A durable power of attorney, which names someone to manage your financial affairs if you are incapacitated;
A healthcare proxy or healthcare power of attorney, which names someone to make healthcare decisions for you if you are incapacitated;
A living will or advance directive, which sets out your wishes for end-of-life care; and
Possibly a trust, which can be used to manage your property and avoid probate.

QUESTIONS AN ESTATE PLANNING LAWYER WILL ASK

When you meet with an estate planning lawyer, they will ask you a number of questions to get a full picture of your situation and your goals. Some of the questions they are likely to ask include:

WHO ARE THE IMPORTANT PEOPLE IN YOUR LIFE?

Your estate planning lawyer will want to know about your family members and other important people in your life, including your spouse or partner, children, grandchildren, parents, siblings, and close friends. They will want to know if any of these people have special needs or circumstances that should be taken into account in your estate plan.

WHAT DO YOUR FINANCES LOOK LIKE?

Your estate planning lawyer will want to know about your assets and liabilities, including your real estate, bank accounts, investments, retirement accounts, life insurance policies, vehicles, and personal property. They will also want to know about any debts you have.

DO YOU WANT TO CREATE A COMPREHENSIVE ESTATE PLAN THAT INCLUDES WILLS, TRUSTS, AND LIFE INSURANCE?

Your estate planning lawyer will want to know what you are hoping to accomplish with your estate plan. Do you want to minimize estate taxes? Provide for a disabled child? Support a charity? The answers to these questions will help your lawyer design an estate plan that meets your needs.

WHAT IS YOUR BUDGET?

Estate planning can be simple and inexpensive, or it can be complex and costly. Your estate planning lawyer will want to know how much you are willing to spend on your estate plan so that they can recommend an appropriate level of complexity.

WHAT DO YOU WANT TO GIVE AWAY?

Your estate planning lawyer will want to know who you want to receive your property after your death, and in what proportions. They will also want to know if you want to make any gifts to charity, and if so, how.

HOW QUICKLY DO YOU NEED YOUR ESTATE PLANNING PROJECT TO BE COMPLETED?

Your estate planning lawyer will want to know your timeline for completing your estate plan. If you are in a hurry, they may be able to expedite the process, but this may also affect the cost.

WHAT DOCUMENTS DO YOU HAVE?

Your estate planning lawyer will want to see any existing estate planning documents you have, including any prior wills, trusts, powers of attorney, or healthcare directives. They will also want to see documentation of your assets and liabilities.

WHAT'S YOUR RETIREMENT PLANNING LOOK LIKE?

Your estate planning lawyer will want to know about your retirement accounts, including any IRAs, 401(k)s, pensions, or other retirement accounts. These accounts have their own beneficiary designation rules that must be coordinated with your overall estate plan.

DO YOU HAVE LIFE INSURANCE?

Your estate planning lawyer will want to know about any life insurance policies you have, including the type of policy, the death benefit, and the named beneficiaries. Life insurance can play an important role in your estate plan, and it is important to make sure that the beneficiary designations on your policies are coordinated with your overall estate plan.

HAVE YOU GONE THROUGH A DIVORCE?

If you have gone through a divorce, your estate planning lawyer will want to know about any divorce decrees, property settlement agreements, or other legal documents that may affect your estate plan. A divorce can affect the distribution of your property, and it is important to update your estate plan after a divorce.

HOW DO YOU FEEL ABOUT A REVOCABLE LIVING TRUST?

A revocable living trust is a popular estate planning tool that allows you to transfer your property to a trust during your lifetime, while retaining the right to revoke the trust at any time. A revocable living trust can help your estate avoid probate, which can be a lengthy and costly process. Your estate planning lawyer will want to know if you are interested in a revocable living trust, and if so, they can explain the pros and cons.

WHAT OTHER ISSUES WOULD YOU LIKE TO ADDRESS?

Your estate planning lawyer will want to know if there are any other issues you would like to address in your estate plan. For example, you may want to provide for the care of a pet, or you may want to specify your wishes for your funeral and burial.

ALL THE QUESTIONS NO ONE WANTS TO ANSWER

Your estate planning lawyer will also ask you some questions that may be difficult to answer, such as: What do you want to happen if you are incapacitated? Who do you trust to make healthcare decisions for you? What are your wishes for end-of-life care? These are not easy questions, but they are important to address in your estate plan.

COMMON DISPUTES IN ESTATE PLANNING

Estate planning disputes can arise for a number of reasons. Common types of estate planning disputes include:

Disputes about the validity of a will or trust;
Disputes about the interpretation of a will or trust;
Disputes about the administration of an estate or trust;
Disputes about the actions of an executor or trustee;
Disputes between beneficiaries; and
Disputes about the distribution of assets.

REMEDIES FOR ESTATE PLANNING DISPUTES

There are a number of remedies available for estate planning disputes, including:

Executor removal: If an executor is not properly administering an estate, a court can remove them and appoint a new executor.
Litigation: Estate planning disputes can be resolved through litigation in probate court.
Elective shares: In many states, a surviving spouse has the right to elect a share of the deceased spouse's estate, even if they were disinherited in the will.
Mediation: Estate planning disputes can sometimes be resolved through mediation, which is a less costly and less adversarial alternative to litigation.

HOW CAN A LAWYER HELP ME WITH AN ESTATE PLANNING CASE?

An estate planning lawyer can help you create a comprehensive estate plan that reflects your wishes and minimizes the potential for disputes. They can also help you resolve any disputes that arise in connection with an estate plan.

Call our office today at (833) 388-7044 or complete the convenient online contact form to set up a consultation.