All of these planning tools
have considerations (pros and cons). What is
most important is that each individual consult
with their estate planning attorney to design
a plan that is appropriate for them. A client
needs an estate plan tailored to their family
situation, considering their respective assets,
liabilities and tax situation. We have seen
too many instances where a client relied on
bad advice, half truths or the advice of someone
who was simply trying to sell them something.
Estate plans are as unique as the circumstances
of the individual clients.
There are four documents which
we consider essential to any simple estate plan:
Last Will and Testament- This document represents the Last Will of the decedent upon death. It serves multiple purposes, among them, stating to whom the decedent intends to bequeath his or her estate; appointing a fiduciary such as a personal representative, Guardian for children, or a trustee (if the Will contains a Trust), and many other optional provisions such as burial instructions or tax planning. It should be noted that a Will effects only property in the decedents own name that will pass through the probate process. A Will generally will not effect jointly held property which names a survivor, assets which name a beneficiary (such as most IRA’s), and insurance policies which name a beneficiary other than the decedent’s estate.
Durable Power of Attorney- This document appoints a fiduciary, an "attorney-in-fact", to act on behalf of the Donor, and to survive if the Donor becomes incapacitated. This document can be prepared to take effect immediately upon signing, or to spring into effect once the Donor becomes incapacitated. Once the power of attorney has taken effect, the fiduciary has the authority to act on behalf of the donor with respect to the donors property (to the extent provided for in the power of attorney document, and in accordance with applicable law).
Living Will- This document allows the client to instruct that his/her dying not be artificially prolonged if there is a terminal condition, an end-stage condition or a persistent vegetative state, and the physicians have determined that there is no reasonable medical probability of recovery from such condition. The client can instruct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and request he or she be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide comfort care or to alleviate pain. Finally, this document provides that in the event the client is determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, a surrogate is named to carry out the provisions of this declaration.
Health Care Surrogate Designation - This document allows the client to name a surrogate to make health care decisions, in the event he or she has been determined to be too incapacitated to provide informed consent for medical treatment and surgical and diagnostic procedures. This designation may permit the designee to make health care decisions, and to provide, withhold, or withdraw consent on the donor’s behalf; to apply for public benefits to defray the cost of health care; and to authorize admission to or transfer from a health care facility. This designation is not to be made as a condition of treatment or admission to a health care facility
In addition to the basic estate planning documents discussed above, there are numerous other estate planning documents to be considered including:
1. Revocable Inter Vivos (living) trusts;
2. Pour Over Wills;
3. Irrevocable trusts;
4. Credit Shelter Trusts;
5. Land Trusts;
6. Various ways to take title by Deed; and
7. Entities such as Limited Liability Companies, Corporations and Limited Partnerships.