There are four documents essential in creating a successful estate plan: a Last Will and Testament, a Living Will, a Living Trust and a Power of Attorney. Each one operates independently of the other, yet they are interrelated. All four documents provide you with the maximum amount of benefit when dealing with your estate. This article will introduce you to all four documents, and the advantages of having them in your estate plan.
The Last Will and Testament
Many of you are familiar with a will. A will provides the mechanism for distribution of any property you own at death, based upon your intent. If you do not have a will at your death, the state will determine who gets your property! The most important aspect of a will is to transfer everything you own to the people that you want to receive the items. The best thing to do when writing your Last Will and Testament is to make a list of all items that are important to you and identify the people you want to receive the items. Then, be sure to include a clause to cover items that you may forget to give someone or items you may receive after you write the will. Finally, remember to include a clause stipulating how taxes will be paid. If you forget this clause, the government will charge each beneficiary for the taxes due, on a pro-rata share. Remember, your Last Will and Testament is the first and most important document in your estate.
The Living Will
Some people may think if you have a Living Will then you have a will. WRONG! A Living Will is known as a “Healthcare Directive.” A Living Will states your wishes on medical treatment if you cannot make decisions for yourself. Not only does it protect you if you want to DENY all available medical treatment, but it also protects you if you want to make sure you RECEIVE all possible medical treatment. In the absence of a Living Will, the doctors who treat you will try to determine what your best options are, with possible consent required from a family member. The Living Will removes this responsibility from the doctors and any surviving family members and states what you want and who you want to make decisions on your behalf.
There are three conditions upon which most Living Wills become effective: (1) if you are diagnosed to be close to death from a terminal condition or to be permanently comatose, (2) if you cannot communicate your own wishes for your medical care, orally, in writing, or by other gestures, and (3) if the medical personnel attending you are not notified of any written directions for your medical care.
Most Living Wills provide for a “proxy,” which is basically the same thing as a power of attorney except it is limited only to the Living Will. A “proxy” is a person who will make sure that your intentions are carried out. Remember, a Living Will does not operate as a Last Will and Testament, it only assists you in medical decisions, you still need your Last Will and Testament.
The Living Trust
A Living Trust is a document that is created and takes effect while you are alive, compared to a Testamentary Trust created while you are alive but effective upon your death. The benefits to the Living Trust are that you can avoid Probate Court and all related costs. However, you can change your mind after you write a Living Trust and you can void out the trust before your death. A Living Trust allows you to transfer ownership of your property to your intended beneficiaries while retaining benefits for yourself until your death. Therefore, you DO NOT lose control of your property while you are alive, and upon your death, a successor Trustee will take over to distribute the property to the beneficiaries in accordance with your wishes. While the Living Trust may avoid probate, it doesn’t avoid creditors or taxes, but it does provide for a quick and efficient method of distributing your property, which may discourage creditors. Remember, you do not save any estate taxes with a living trust over a Last Will and Testament, since you maintain “control” of all aspects of the trust until you die. The two key benefits involve avoiding probate court and its related expenses and keeping your estate private since the public does not have access to the trust documents.
Power of Attorney
The fourth and final document that is needed in an estate plan is a Power of Attorney. A Power of Attorney is necessary in the event you are unable to make sound financial decisions regarding your assets during your lifetime. The Power of Attorney does not become effective until it is executed by the individual you state in the written document. It is important that you plan for the unfortunate situation when you are not able to make sound financial decisions. The Power of Attorney assists in a smooth transaction and can provide you with sound financial decisions that will enable you to have a steady stream of income for the rest of your life. Remember, you can always change the named individual or the terms, as long as you are of sound financial mind.
While this is just a short introduction to the topics, it is imperative to realize the importance of each document. If you would like more information on any of these four documents, please contact The Center or visit our website at www.taxplanning.com.
By: Dr. Bart Basi at the Center for Financial, Legal and Tax Planning for Transworld M&A Advisors