Estate Planning is primarily about living — ensuring you and your family will be taken care of in times of need. A Trust, Advance Health Care Directive, and Durable Power of Attorney are used to care for you and your property when you are unable to make decisions for yourself. If funded properly, a Trust will also allow your family to avoid the difficulties associated with a court probate proceeding.
Common documents in an Estate Plan include the following:
Revocable Living Trust
A Revocable Living Trust, also called a Revocable Trust or Grantor Trust, is created to hold certain types of assets you own including real property, bank accounts and brokerage accounts. Retirement accounts are generally not included in your trust assets as they will be distributed to the named beneficiaries for the accounts.
The trust has three main purposes. First, should you become ill and unable to manage your estate, the trust appoints someone you have named to act as your trustee and help care for you. Second, when you pass away, a trust can help your beneficiaries avoid the burden of probate, which involves court oversight of the distribution of your estate. Third, the trust specifies how you would like your estate distributed.
When you have an Estate Plan the Will allows for an executor to manage certain properties not in your estate. This usually includes items such as smaller bank accounts. To ensure your estate is distributed per your wishes, the Will is a Pour-Over Will, essentially any assets not in the trust pour over to the trust.
Durable Power of Attorney
A Durable Power of Attorney allows someone you select access to accounts which are not included in the trust. This usually includes retirement and pension accounts. It will allow them to access the account to help fund your care and pay your bills. One thing to note, the Durable Power of Attorney may only be used while you are alive. You also choose when it becomes effective, either immediately or upon incapacitation, and you can revoke it at any time.
Advance Health Care Directive
The Advance Health Care Directive allows you to name someone to make healthcare decisions for you when you are unable to make them yourself. This is a very personal issue and one that requires a great deal of thought. The Health Care Directive also addresses your wishes regarding life sustaining treatment, whether you are buried or cremated, and if you would like to be an organ donor.
A variety of other documents are used to complete your Estate Plan, including a Certification of Trust, Trust Ownership of Personal Property, Memorandum of Tangible Personal Property, Deeds, and Assignment of Shares.
If your trust will care for someone with special needs or someone with special needs will be inheriting a retirement account, special trusts and documents must be completed to account for public benefits and tax issues.