This is an article from the law office of Amen, Gantner & Capriano (http://www.yourestatematters.com/) in St. Louis, Missouri, that we thought others may find helpful.
Hopefully, you are aware of the importance of having an estate plan in place; however, do you understand what components should be in that plan? A comprehensive estate plan, after all, should accomplish much more than designing a road map to be used for the distribution of your estate assets when you are gone. A well drafted estate plan can help manage and grow those assets while you are still here as well as protect you and your loved ones both now and in the future. Given the individual nature of an estate plan, your plan may not include the exact same components as someone else’s plan; however, there are some common additions to a basic estate plan that you may wish to consider for your comprehensive plan. Ultimately, consulting with your estate planning attorney is the best way to decide which additional components will best serve you and your estate plan.
Your Last Will and Testament — The Foundation
If you are like most people, when you think about an estate plan the first thing that comes to mind is executing a Last Will and Testament. Your Will, however, should only serve as your plan’s foundation, upon which you build the rest of your estate plan. In your Will you may decide to make specific or general bequests or you may simply provide instructions that lead to a trust or other estate planning documents in your Will. You do, however, make two important appointments/nominations in your Will — the Executor of your estate and a Guardian for minor children. These appointments can only be made in your Will.
Expanding on the Foundation and Avoiding Probate– Trusts
After a Last Will and Testament, a trust is among the most common additions to any well thought out estate plan. Trusts come in a wide variety of forms; however, the concept remains the same. A trust allows you to transfer assets to a Trustee who will guard and protect those assets for the benefit of a third party beneficiary. You may create a trust that takes effect before you die, known as a “living” trust, or after you die, known as a “testamentary” trust. Your beneficiary can be a person, entity, charity, or even the family pet.
Probate is the legal process that follows the death of an individual. Probate can take a considerable amount of time to complete and can be costly. Moreover, estate assets required to go through probate are held up until the process is complete. For these reasons, most people include probate avoidance strategies in their estate plan when possible. The simplest way to avoid probate is to include non-probate assets in your estate, such as:
- Trust assets
- Proceeds of a life insurance policy
- Certain types of joint ownership
- Payable on death and transfer on death account designations
The reality is that a tragic accident or debilitating illness could leave you incapacitated at any time. Therefore, your estate plan should include plans for this possibility to ensure that your assets are in the hands of the right person and personal decisions are being made the person of your choice. Ways to accomplish these goals include the addition of the following in your overall estate plan:
- Durable power of attorney – a power of attorney is a legal document that allows you (the Principal) to give someone else (your “Agent”) the legal authority to act on your behalf. A durable power of attorney survives the incapacity of the Principal.
- Revocable trust – allows you to name yourself as the trustee and a spouse, adult child, or anyone else as the successor trustee. Assets are then transferred into the trust and controlled by you as the trustee as long as you are capable of acting as the trustee. Should you become incapacitated the successor trustee takes over, providing an uncomplicated and automatic shift of control over the trust assets to the person of your choice.
- Advanced directives –you can execute a Durable Power of Attorney for Health Care Choices and/or a Health Care Choices Directive which allow you to appoint an Agent to make healthcare related decisions for you if you are unable to make them yourself and make some end of life healthcare decisions for yourself now.