A person’s estate refers to all of their property, which generally includes:
- Personal items, including furniture;
- Bank accounts, including savings accounts;
- Real estate;
- Vehicles that are owned by the estate’s owner;
- Retirement accounts;
- Stocks and securities; and
- Other such assets.
The person who makes the plan is called a testator. When you die as a testator, an estate plan is what provides instructions regarding how your property will be managed and distributed. A well-developed estate plan can also have many additional benefits. An example of this would be how a clear plan can minimize your loved one’s tax burden, as well as the need for probate court proceedings.
Although most people associate estate planning with wills and trusts, it can also address other issues such as:
- How you are to receive medical treatment if you become incapacitated and cannot state your preferences for yourself;
- Whether you are an organ donor;
- Who will make legal and financial decisions on your behalf should you become incapacitated;
- Who will care for your minor children when you die, or become incapacitated;
- Who will take over your business interests; and
- Your funeral arrangements, including information regarding any arrangements you made while living.
If you do not create a legally enforceable estate plan for yourself, your estate will be distributed according to your state’s specific intestate succession laws. These laws vary from state to state, and can sometimes result in property distributions that do not align with what you may have wanted. This is why it is important to provide an estate plan for yourself.
What Should An Estate Plan Contain?
To reiterate, an estate plan can include instruments other than a will. Some estate plans also include instructions for a trust, which is an arrangement in which assets are held by a third person for the benefit of others. An estate plan should include detailed instructions regarding to whom each asset should be given; the people who inherit these assets are referred to as beneficiaries.
An estate plan should also provide information regarding how those beneficiaries will inherit the testator’s property. An example of this would be how if a testator has three children and wants all three children to inherit the family home, they will need to clarify whether the children inherit in equal shares, or if one child gets a majority share. Having a solid plan can assist in avoiding any disputes among the estate’s beneficiaries, or other interested parties.
Additionally, there may be situations in which a beneficiary dies before the testator can update their estate plan. This is why an estate plan should have contingency instructions in place which detail who should inherit that beneficiary’s gift instead.
Generally speaking, spouses and children of a testator will inherit first, if not all. Many states maintain specific statutes which ensure that the surviving spouses and children of testators will inherit a part of the estate, even if the will does not specify as such. However, it is important that an estate plan includes all of the individuals whom the testator wants to benefit. Other relatives are unlikely to inherit unless they are specifically named in the testator’s will.
This can include, but may not be limited to:
- Surviving parents;
- Uncles; and
- Close friends, or “chosen” family.
An estate planning lawyer can help you draft a will, trust, power of attorney, or other estate planning documents. These documents will all work together in order to help protect your assets and distribute them according to your wishes. While all estate plans will differ based on the specific needs of each testator, some general elements of a successful plan include:
- Your Family Understands Your Wishes: No matter what your estate plan contains, you should always inform your family and other stakeholders of your estate plan, as well as any recent changes to it. This can help reduce the likelihood of legal disputes and will help ensure that your plan is actually executed according to your wishes;
- Your Estate Plan Clearly States Your Wishes: Simply put, your estate plan should be easy to understand and contain clear language. If your will or other estate documents are vague, they could cause unnecessary disputes, or cause confusion regarding what your wishes actually were;
- You Have a Will: To reiterate, a will is a fundamental element of any strong estate plan. It is the foundation as it transfers your property to your named beneficiaries, as well as appoints a legal guardian for your minor children. If your estate plan includes nothing else, it should contain a clear and well-written will;
- You Have Health Care Directives In Place: You should create and maintain a document that addresses your end-of-life medical treatment, as well as other important medical decisions. This will provide instructions regarding your wishes should you become incapacitated and cannot state them yourself. An example of this would be creating and signing a Do Not Resuscitate order (also referred to as a “DNR”); and
- You Have a Financial Power Of Attorney: Should you become incapacitated, a trusted family member or friend can make your important legal and financial decisions on your behalf. It is imperative that you designate a trusted financial power of attorney while you are still of sound mind and body, in order to avoid disputes associated with the matter later on.
Your attorney can help you organize your estate, which can make it easier for your loved ones to identify your holdings and distribute them according to your wishes. Above all else, your attorney can answer any of your questions and help you determine what is important for your specific estate plan.
When Is It Necessary To Have An Estate Plan?
Whether you actually need an estate plan may depend on whether you are:
- Young, Single Person: You might not need an estate plan unless you are very wealthy, or have a considerably serious illness;
- Unmarried, Committed Partner: Estate planning is a necessity; without a will or trust, your unmarried partner will not receive any of your property upon your death;
- Couple With a Minor Child: You should choose an estate plan that appoints a legal guardian for your child. This plan should ensure their physical, emotional, and financial welfare. Additionally, you should consider purchasing a life insurance plan in order to protect your spouse and child;
- Middle-Aged: As your income and assets grow over time, you should have an estate plan that helps your loved ones avoid probate. An example of this would be how you might consider placing certain property items in a revocable trust, or converting your bank accounts to “payable on death”;
- Parent Of a Disabled Child: Your estate plan should contain a special needs trust, which can provide for your disabled child without disrupting their other benefits; and/or
- Elderly or Ill: Your plan should focus on issues such as the division of your property, avoiding probate, and minimizing estate taxes. You should also consider designating a health care proxy which allows someone to make your health care decisions for you if you become incapacitated.
As your circumstances evolve over time, you may need to modify your estate plan. An example of this would be how you might need to change your will if you move to a state that has different legal requirements Additionally, you should update your estate plan if you have another child, divorce, or marry.
Do I Need An Attorney For Estate And Trust Administration?
An estate attorney can help you create, modify, and administer a legally sound estate plan. An experienced and local lawyer will be best suited to understanding your state’s specific estate and intestacy laws, and as such can provide you with the most relevant legal advice in terms of your legal rights and options.