Estate Planning

Posted by The Probate Pro, PLC on Monday, April 9, 2018

Estate planning is an option for everyone. It is the forward-thinking process of controlling your assets during your lifetime, as well as how they will be distributed after your death. Most importantly, estate planning offers peace of mind to you and your loved ones. By establishing a plan, you are freeing your loved ones of the emotional and financial stress that accompanies managing and distributing your assets after your passing. You’re also gifting yourself a peace of mind in knowing that your most valuable possessions will be taken care of after you’re gone. In short, your plan reduces the risk for disputes among beneficiaries while ensuring that your wishes are carried out.

Estate plans have multiple parts, including Wills, Trusts, Patient Advocate Designations, and Powers of Attorney, among other documents. You may choose to do one, a few, or all of these options. Talking with a trusted attorney can help you determine the best option for you, your family, your assets, and your circumstances based on your needs and wishes.

Wills:

A Will is a written document in which the person making the Will specifies how he or she wants their probate property distributed upon death, and designated a person to be in charge of managing that property after death.

If you do not have a Will, your probate estate will be distributed according to the statute in the state that you live in that controls distribution of intestate estates. Intestate estates are estates without a Will. Under the statute, a predetermined percentage is distributed to certain heirs according to the relationship to the decedent. The statute distributes your assets according to your family tree, which may not always align with your wishes.

A Will must be:

  1. In Writing
  2. Witnessing Requirement:
  • signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction
  • signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision (b) or the testator’s acknowledgment of that signature or acknowledgment of the will.

Holographic Will Requirement: A Will can still be admitted if it meets the definition of a Holographic Will. A will that does not comply with the above description is valid as a Holographic Will, whether or not witnessed, if it is dated, and if the testator’s signature and the document’s material portions are in the testator’s handwriting.

The Testator is the person making the Will. Testators must be of sound mind and at least 18 years old.

For a Will to be valid, the person must:

  • Know the nature and extent of the property owned;
  • Know the names of his or her heirs;
  • Know who is receiving what under the Will; and
  • Understand that they are making a Will.

Witnesses can include any competent adult who does not receive property under the Will.

Trusts:

A living Trust is simply a trust you create while you are alive. It is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, which allows you to maintain complete control over all property held within the trust during your lifetime.

There are different types of living trusts that offer different advantages, such as avoiding probate, reducing estate taxes, and the opportunity to set up a long-term plan for managing your property and assets, such as controlling when and for what a beneficiary may receive a distribution. This is ideal for those that have minor or disabled beneficiaries.

Moreover, the terms of a living trust are private and do not become public record. This is unlike a Will that does become public record once submitted to a probate court.

Patient Advocate Designation:

Commonly referred to as a Health Care Power of Attorney, a Patient Advocate Designation is a document that allows you to nominate an individual to make health care decisions on your behalf if you are unable to do so. You may also express your wishes regarding life-sustaining treatment should you become terminally ill or are otherwise unable to speak for yourself.

You may also choose to be an organ donor via a Patient Advocate Designation.

The Patient Advocate makes decisions for you regarding care, custody, and medical treatment in the event that you are unable to do so. The Patient Advocate may decide to withhold or withdraw

life-sustaining treatment if the patient has expressly authorized this wish and acknowledged that death could result.

Any person age 18 or older may be nominated as a Patient Advocate. Often times, a family member is chosen, such as a spouse or adult child, or close friend, or another trusted individual. You should choose someone you trust, who can handle the responsibility, and who is willing to serve in this role.

Yes. A patient has the right to inspect and copy his or her hospital or nursing home records. Once you are incapable of participating in your own treatment decisions, your patient advocate has the same rights you have.

Yes! This document is vitally important to all individuals, regardless of age, and is a comprehensive part of any estate plan. To ensure you are adequately protected, The Probate Pro includes a Patient Advocate Designation in each estate plan.

If you become ill or are injured and you cannot make your own medical decisions, a loved one will need to petition the probate court to become your guardian. By law, only an attorney-in-fact or guardian can make medical and placement decisions for a person who cannot make those decisions themselves.

Power of Attorney:

Similar to a Patient Advocate Designation, a General Power of Attorney allows you to nominate someone to make decisions on your behalf. Instead of healthcare decisions, a General Power of Attorney grants the named individual the power to make decisions regarding finances, property, and/or other assets and financial interests.

Whenever you so choose. A Power of Attorney depends on your specific needs and can become effective immediately upon signature, upon your incapacity, or at a specified future date.

No. When you die, the Power of Attorney becomes ineffective and terminates.

If you become ill or are injured and you can no longer handle your own financial affairs, a loved one will need to petition the probate court to become your conservator. By law, only an attorney-in-fact or conservator can pay bills, sell property, file tax returns, etc. on behalf of a person who cannot handle their own financial affairs.

Click here to learn more about Patient Advocate Designation, Health Care Power of Attorney and Living Will

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