Estate planning can be a difficult process to navigate both conceptually and emotionally. Unfortunately, it often takes experiencing a death in the family to recognize the importance of having a proper estate plan. Having an estate plan will help ensure that your assets pass according to your wishes while also making the process a little smoother for your heirs. Below we have listed some of the basic estate documents that everyone should have and how they work. This is not an exhaustive list, so it is important to discuss your wishes with an estate planning attorney to ensure your documents are set up accordingly.
A will is a legally binding document that outlines your wishes for disposition of probate assets at death. Without a will you are considered to die intestate, which means that your property and assets will be distributed according to your state’s laws, which may not be fully aligned with what you would choose. Basically, a will helps to ensure that you are able to choose how you would like your assets to be dispersed whether it be to a family member, charities, etc.
Within the will you will be able to designate an executor who will be responsible for overseeing and executing your estate. It is best practice to name a contingent executor in case your primary executor is unable to serve.
Depending on your estate planning needs there are also a few typical clauses that can be added to your will. There are many more, but these are just a few of the most common.
- Guardianship Clause – If you currently have minor children or plan to have children in the future then your will should include a guardianship clause. A guardianship clause identifies who you would like to provide care to your minor children.
- Pet Clause – Similar to the guardianship clause above, a pet clause can be added to direct care for your pets.
- No Contest Clause – A no contest clause helps to discourage beneficiaries from contesting the instructions in your will. It can outline instructions to reduce the inheritance the beneficiary could receive if they try to contest the will.
- Simultaneous Death Clause – This clause helps to avoid going through the probate process twice if a married couple were to pass simultaneously.
- Survivorship Clause – Before any assets can be inherited this clause requires a beneficiary to outlive the decedent for a certain amount of time. Like the simultaneous death clause listed above, this clause helps to avoid going through the probate process twice in such a short amount of time.
One thing to note about wills is that they instruct the disposition of probate assets only. This means that any assets that have a beneficiary designation assigned (IRA, 401k, Transfer on Death/Payable on Death, life insurance, etc.) will supersede the will. It is important to revisit your beneficiary titling regularly with your financial advisor to ensure all instructions are cohesive with the will.
Financial Power of Attorney
A financial power of attorney (POA) directs who you would like to act on your behalf to oversee and manage financial affairs if you unable to do so. Note that this document is only effective during your lifetime and becomes void at death. Within the financial power of attorney document, you can specify the scope and duration of their appointment.
- Limited vs General Powers – Specifying the scale of power for your designated agent will let you limit the POA to act on your behalf for either a particular transaction or on a broader scale for all financial affairs.
- Durable vs Springing – A financial power of attorney can expire when you become incapacitated unless you specify the document as a durable power of attorney. This will ensure the power remains active until your death even if you are incapacitated. Instead, you can elect to draft a springing power of attorney while will only come into effect at a specified event/time.
Medical Power of Attorney
A medical power of attorney (POA) is very similar to the financial power of attorney listed above except it involves your healthcare. This document directs who you would like to make medical decisions on your behalf if you are unable to do so. This document is only effective during your lifetime and becomes null at death. Please note that you do not have to name the same person to act as the POA on both the financial and medical power of attorney.
Living Will (Directive to Physicians) vs Do Not Resuscitate (DNR)
A living will (Directive to Physicians) specifies what medical support you approve of for life sustaining measures. This document directs the care protocol while you are still alive but unable to make a decision yourself.
A Do Not Resuscitate (DNR) declares that you do not wish for medical staff to attempt at resuscitating you. Unlike the living will, this document specifies the protocol while you are no longer alive and do not wish to be revived.
As previously mentioned, the documents described above are not an exhaustive list but just the basics that everyone should consider having. Estate documents are many things to many people: they are a way to ensure your family’s well-being, they provide a sense of financial security, and they are a tangible representation of the work you have done in your life. While having an estate strategy is critical for any individual wanting to transfer their wealth from one generation to the next, ultimately, it is best to consult with an experienced estate attorney and financial planner. A financial planner can help you construct an estate planning strategy and coordinate with your attorney to ensure it is tailored and implemented to meet your specific needs and goals, where updates are often discussed during your planning meetings. Reviewing this strategy on a regular basis can help verify it stays relevant pending any changes to the tax code or major life events (marriage, divorce, children, grandchildren, etc.). At the end of the day, having control over your wealth – even after you are gone – is invaluable. Taking the time to thoughtfully plan now could have tremendous benefits for generations down the line.
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