Many people put off the need for a will during their lifetime.  If you choose not to create a will, you may assume that your spouse will still be entitled to all of your assets.  The truth is, this may not be the case.  Take a look at the following information, to learn more.  If you’d like to make sure that you’re in control over how your assets are distributed, work with an estate planning attorney to create your will.  If you have any questions about how a will gives you control, contact an estate planning attorney.

Without a will in place, you’re not in full control over how your property is distributed.  If you choose not to create a will, it’s important to think about a few things.  This will help you get a better idea of how your assets will be distributed.

Do you own property jointly with another individual?  If so, this person will be given your assets after death.  This can be a one way to ensure that your spouse will be given certain property.  It’s important to carefully think through this ownership decision because there are pitfalls to joint ownership, even with a spouse.

Additionally, your state laws will determine how your individually owned assets are distributed after death, if you choose not to create a will.  You may assume that your spouse will get most of your assets, but this is likely not the case.  Many state laws, including Arkansas, ensure that children, even minor children, get a significant portion of an individual’s assets.

Take the time to handle your estate planning affairs so that you’re in full control over how your assets are distributed.  By creating a will, you can outline how you wish for your assets to be given away, making it possible for you to leave a large portion of your assets to your spouse.

If you have any questions, or if you’d like to create a will, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

My son is a mess; he’s an alcoholic and just can’t get himself straightened out.  It’s embarrassing.  Do I really need to tell my estate planning attorney?  I really don’t want anyone to know.

Estate Planning Customization Requires Family and Financial Information

We know that it’s uncomfortable to talk about embarrassing family situations, including addictions such as alcoholism; but it’s necessary.  There is much your estate planning attorney can do to customize your estate plan to help your loved ones and to protect you.  If your plan isn’t customized to your particular situation, it won’t work.

It’s also necessary to disclose family dynamics, health issues, potential divorce situations, financial difficulties, and the like.  It all factors into the design and implementation of a comprehensive estate plan.  Your estate planning attorney will ask you to fill out written forms and then ask you questions during your estate plan design meeting.  The more information that you disclose, the better your estate planning attorney can diagnosis your needs and design an estate plan that matches your needs.

Your Estate Planning Attorney has Heard it Before

Your estate planning attorney won’t judge you, and you can be sure that he or she has previously heard similar stories.  We, as humans, are more alike, and experience more similar situations, than we know.

In addition, rest assured that all your discussions will be kept in confidence by your attorney.

How Your Estate Planning Attorney Can Help

If your estate planning attorney is aware of an addictive disorder, she will take it into consideration when designing your plan.

For example, it would likely be unwise to appoint an alcoholic to a position as a trusted helper such as personal representative (i.e. executor), trustee, guardian for minor children, or power of attorney agent.

In addition, if the person with the addiction is a beneficiary, an outright inheritance could make the problem worse or even kill him or her.  Instead, your attorney can design a life-time protected trust with a professional trustee.  Assets would be distributed to benefit your beneficiary, but not directly to him.  For example, the rent would be paid directly to the landlord and the medical bills would be paid directly to the medical provider.

If you’re in the estate planning process, disclose uncomfortable family, health, and financial issues to your estate planning attorney.  You can trust him or her to keep your confidences and to use the information to help you and your beneficiaries.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Incapacity planning encompasses pre-planning to get your wishes in writing and authorizing trusted helpers to act on your behalf when you cannot.  This keeps you in control and avoids court interference.  The guardianship (or conservatorship) court process was established to help people who don’t do their own incapacity planning and have no one authorized to help them.

This is a good thing, but if you have the choice, and you do, it should be avoided.  Court interference is a total loss of control; plus, it’s expensive, time-consuming, and can be heartbreaking.  Basically, it’s a court case wherein family members, doctors, social workers, and the like have to testify that you are incompetent in a public courtroom.

For financial incapacity planning, all adults need a financial power of attorney and should consider a revocable living trust (it’s a good fit for most people.)

For medical incapacity planning, all adults need a health care power of attorney and HIPAA release and should consider a living will and organ donation authorization.

• Financial power of attorney:  a legal document in which an individual authorizes an agent to act on hisor her  behalf in financial and personal business matters.  Most powers of attorney are effective immediately, but aren’t used until incapacity occurs.  Authorization under a power of attorney ends at death.

• Revocable living trust:  a legal document in which an individual authorizes a trustee to act on his or her behalf  if he becomes incapacitated. The disability trustee has authority to act so long as the trust maker is incapacitated; if capacity is regained or the trust maker dies, then the disability trustee’s authority ends.

• Health care power of attorney:  a legal document that authorizes agents to make medical decisions for the benefit of another if that person cannot provide informed consent.

• HIPAA release:  a legal document that is required for medical privacy laws; it allows medical personnel and health care agents to communicate to named persons (family members, etc.).

• Living will:  a legal document containing an advance medical directive stating that if the principal is in a persistent vegetative state or irreversible coma, no medical heroics, such as life support, will be provided.

• Organ donation authorization:  a legal document containing an advance medical directive, stating that the principal wishes to donate his organs and tissues upon death.

If you don’t have incapacity planning in place, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If you have a revocable living trust, you (and your spouse, if you have one) are most likely trustee of your own trust.  There may also be contingent trustees named to serve in your place should you become disabled and upon your death.  They are often called “disability trustees” and “death” or “settlement trustees.”  They step into your shoes and run your trust when you cannot.

Follow Trust Instructions

The most important duty your trustees have is to follow your trust’s instructions.  Your trustees are only authorized to act in a particular matter if they can find authorization in the trust document, or under state law.

Examples of Trustee Duties

Trustee duties are outlined in your trust.  Typical duties include protecting and managing assets, paying bills, dealing with financial institutions and creditors, providing for your care if you are incapacitated, paying taxes, and distributing assets to named beneficiaries.

What Does My Trustee Need to Know?

Your trustees must have access to the trust document and will most likely work with a qualified estate planning attorney who will guide them.  Your trustees should read the document and get good advice.  It’s also important that your trustees always act in your highest and best interests; keep your assets separate from their own; keep good financial records of all investments, expenditures, and income; and never use assets as their own, unless the trust documents authorizes such.

Be sure that your trustees have access to your trust document and know how to contact your estate planning attorney. 

Choosing a Trustee

Choose trustees who care about you; are good with money and investments; can work with professionals such as your estate planning attorney, financial advisor, and CPA; can communicate effectively with your beneficiaries; keep detailed records; and stay organized.

When you have a particular trustee in mind, speak with that person to get permission before naming him or her as trustee.  Your first choice may have too much on his or her plate and may not want to take on added responsibility.  In addition, be sure to name contingent trustees (and get their permission) in case your primary trustee is unable or unwilling to serve.

If you need more information on trustee duties or choosing trustees, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If your doctors determine that you are in an irreversible coma or persistent vegetative state, and if you don’t want to be kept alive with medical heroics such as life support, you should sign a living will.  The U.S. Supreme Court has ruled that a living will is clear and convincing evidence of an individual’s intent to withhold consent for heroic medical treatment, including life support machines.  Without a living will, your loved ones will have to make the decision regarding life support.  That may lead to a family battle and you not getting what you want.

Terri Schiavo:  15 Years on Life Support

Terri Schiavo was a young woman living in Florida with her husband, Michael, when she collapsed in their home.  Michael called 911 and Terri was rushed to the hospital; she was hooked up to life support machines.  Like Nancy Cruzan (discussed in part one of this article), Terri did not have a living will, but she had expressed that she didn’t want to be hooked up to machines to artificially extend her life.

The attending physicians made it clear that Terri was in a persistent vegetative state and would not improve.  Her husband sought to have life support removed.  Terri’s parents disagreed.

Years of court battles ensued.  You likely saw news coverage.

Terri was finally removed from life support 15 years after she collapsed in her home.  She died shortly thereafter.

You Need a Living Will

If you don’t want medical heroics at the very end of life, when there is no coming back, execute a living will.  Chat with the adults in your family.  Let your loved ones know how you feel, andlet them know that you’ve signed a living will.

If either you or your loved ones don’t have living wills, consult a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If your doctors determine that you are in an irreversible coma or persistent vegetative state, and if you don’t want to be kept alive with medical heroics such as life support, you should sign a living will.  The U.S. Supreme Court has ruled that a living will is clear and convincing evidence of an individual’s intent to withhold consent for heroic medical treatment, including life support machines.  Without a living will, your loved ones will have to make the decision regarding life support.  That may lead to a family battle and you not getting what you want.

Nancy Cruzan

The two most well known life support/right to die cases are those of Nancy Cruzan and Terri Schiavo.  After being injured in a car accident, Nancy Cruzan was kept alive with artificial hydration and nutrition for nearly eight years.

After the first four years and the realization that Nancy was never going to get better, her parents and husband wanted to have the life support removed, but the state of Missouri disagreed.  The case went on for years, and made it all the way to the Supreme Court.

The Court ruled that a living will is clear and convincing evidence of the desire to not be kept alive with life support machines if an individual is in a persistent vegetative state.  Nancy didn’t have a living will, therefore, the state, at that time, was permitted to keep her on life support since there was no clear and convincing evidence presented.

After the Court’s ruling, Nancy’s parents and husband submitted additional evidence which finally constituted “clear and convincing” evidence of her desire, and she was removed from life support.  She died 19 days later – 8 years after her car accident.

If you don’t have an up-to-date living will, consult with a qualified estate planning attorney so that you never share the same fate as Nancy Cruzan.  Please read part 2 of this article, wherein we discuss Terri Schiavo’s life support/right to die case.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Your estate plan is something you need to periodically review, and the new year is a good time to schedule a moment to review the various aspects of your plan. Scheduling an appointment to talk to your attorney is also a good idea, especially given the changing legal and tax landscape that can affect you.

Tip 1: Update your will. A last will and testament is not a document that, once created, you should just leave gathering dust. Whenever you go through a major life event, such as getting married, welcoming a new child or going through a divorce, you should update your will to reflect the new situation. You can do it by adding an amendment, known as a codicil, or create an entirely new will.

Tip 2: Update your medical directives. Along with your will,  you should also update any medical directive you’ve made.  For example,if  you’ve named a health care proxy or durable power of attorney, make sure the person you’ve selected is still the person you want. If you decide to select someone new, make sure you create a new document that meets all state requirements.

Tip 3: Review your retirement accounts and any other instruments that allow you to choose your own beneficiary. It’s fairly common for people to set up retirement accounts, 401(k) accounts or insurance accounts that name a beneficiary and then quickly forget about who that beneficiary is. If it’s been a few years since you looked over your beneficiary designations, take some time to review and update if necessary.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

A revocable living trust is a popular estate planning tool because it offers many benefits.  If you’re thinking about using this planning tool, take a look at the following information to learn about a revocable living trust.  If you have any questions, or if you’d like to create a trust, contact an estate planning attorney.

• You can avoid probate.  Avoiding probate saves time and money and keeps your affairs private.  Your revocable living trust must be fully funded for probate avoidance.  This means that all of your assets that would otherwise go through probate must be titled in the name of your trust (not your individual name.)
• You can control your trust during your lifetime.  Having full control makes it possible for you to make changes to your trust document as needed,as long as you have the requisite legal capacity to sign legal documents.  In addition, you maintain full control of all of your assets.
• You have the ability to prepare for incapacity.  With a revocable living trust, you can decide who will manage your trust’s assets should you become incapacitated.  This makes it possible for your financial affairs to always be in order.
• Your beneficiaries can receive their inheritances more quickly.  Since assets won’t pass through probate, beneficiaries won’t likely have to wait a long period of time for their inheritances.
• Your trust can be used during your lifetime and after your death.  Unlike a will, a trust is effective immediately.
• It’s hard to contest your trust.  Many people create a revocable living trust to ensure that their wishes are respected.  Will contests are much more likely successful than trust contests.

Work with an attorney to ensure that your revocable living trust’s affairs are in order and you take advantage of these benefits.  If you’re ready to create a revocable living trust, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Take a look at the following information to learn 9 cool things that estate planning can do for you.  If you have any questions, or if you’d like to begin creating your estate plan, meet with an estate planning attorney.

Estate Planning will:

• Give you control over who will get financial support during any period that you are incapacitated, as well as who will receive your assets after your death;
• Prepare for your child’s future by planning for college, protecting assets they will inherit, and naming guardians;
• Protect assets from creditors and predators;
• Make sure that your family has enough assets to pay bills after your death by analyzing saving and insurance needs;
• Give you control over who will handle your affairs after your death so that your private financial and family affairs remain private;
• Protect you during incapacity so court intervention is avoided and you stay in control by appointing agents and trustees to support you with financial management and health care decisions;
• Plan for long term care, college, and retirement costs;
• Minimize your estate tax responsibilities and reduce fees; and,
• Protect your family business from creditors and best ensure that it makes the transition to the next generation.

If you have yet to begin your estate planning, now is the time to do so. If you choose not to plan, you will have no control over how your affairs are handled. An estate planning attorney can work with you so that you’re able to achieve all of your planning goals.  You will find that with an estate plan in place, you’re able to live a less stressful life, because you will have confidence that your affairs are already in order.

If you have questions about how estate planning can individually help you, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If you’re just beginning to think about creating an estate plan, there are 3 tips that can help you along the way.  These tips will help you have a good plan in place so that your needs are met.  Take a look at the following information to learn more.  If you have any questions, or if you’d like to get guidance on your individual estate plan needs, contact an estate planning attorney.

• Consult with a qualified estate planning attorney

Work with a qualified estate planning attorney.  While legally, you can create your own legal documents or download them from the internet, it’s not recommended.  Do-it-yourselfers often find that their estate plans don’t work and they end up paying much more in the long run.

• Consider using more than just a will

A will is a powerful estate planning tool that allows you to prepare for the future.  Unfortunately, it won’t allow you to plan for all of your needs.  Do you want to protect your assets? Are you looking to plan for possible disability?  Do you want to avoid probate?  In order to achieve these needs, you will need other estate planning tools.  Your estate planning attorney will explain the benefits of a revocable living trust, living will, powers of attorney for health care and finances, and organ donation authorizations.

• Keep your plan neat and organized

Make sure that your plan is easily accessible.  Once you have a plan in place, make sure that it’s used, when needed.  You should also keep your files in a safe place so that they’re free from damage or theft.  Tell your loved ones where you plan to store all of your documents.

If you’re ready to begin your estate planning, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.