An estate refers to the property that is possessed by someone at the time of their death. Estate planning specifically refers to drafting documents such as wills, trusts, power of attorney, and other such documents that permit the transfer of property after an individual’s death. The estate’s owner is referred to as the testator, while the people who receive the testator’s property through estate planning are known as beneficiaries.
Generally speaking, when a person dies without a will or other estate planning instruments, their property would be transferred to their next of kin. However, there are more complexities associated with the transfer of estate property, which vary depending on the state in which the testator resides. If you wish to control and determine how your property is to be distributed upon your death, it is critical that you draft a will which specifies the terms of how your property is to be managed.
Estate planning begins with wills and trusts. However, it can also address other issues, such as:
- How you are to receive medical treatment when you become incapictated and cannot speak for yourself;
- Organ donor status;
- Who will make legal and financial decisions on your behalf if you become incapacitated;
- Who will care for your surviving minor children;
- Who will take over your business interests; and
- Your funeral arrangements, including details associated with premade arrangements, such as a burial plot.
In terms of what estate property can be distributed, this most commonly includes a person’s:
- Stocks, bonds, and cash;
- Bank accounts and retirement accounts;
- Life insurance policies;
- Pensions; and
Generally speaking, people want to preserve their family’s wealth and ensure that their property is transferred to their surviving spouses, children, and/or grandchildren. Some of the estate property can also be distributed to your desired charity cause.
If you do not create an estate plan for yourself, your estate will be distributed according to your state’s specific intestate succession laws. These laws can vary widely, and can sometimes result in property distributions that are not in alignment with what you may have wanted. Because of this, it is important to create an estate plan for yourself.
What Steps Are Involved In Estate Planning?
The foundation of estate planning begins with drafting a will. To reiterate, a will is a legal document created to provide instructions on how your property and custody of minor children should be transferred after your death. You express your wishes through this document, and generally name a trustee or executor to fulfill the stated intentions.
Additionally, the will document is what decides whether a trust should be created after death. To summarize trusts, there are two types of trusts: one that goes into effect during your lifetime, also known as the living trust, and one that comes after you die, which is known as the testamentary trust.
The authenticity of a will is determined by a legal process called probate. Probate is the first step taken in administering the decedent’s estate, as well as distributing assets to the beneficiaries. After you die, the assigned executor of the will can take the will to the probate court within 30 days of your death. If you did not appoint an executor, the court will determine who should fill the role. It is imperative to research your local deadlines for the submission of the will for probate.
During the probate process, the court determines the validity of the will as well as its authenticity in terms of it being the last wish of the decedent. After the court determines the will’s validity, it then officially assigns the executor you named in the will, and gives them the legal power to act on your behalf.
Other significant estate planning tasks include, but may not be limited to:
- Placing limits on estate taxes by setting up trust accounts in the name of beneficiaries;
- Designating a legal guardian for any living dependents;
- Assigning an executor of the estate to handle and manage the terms of the will;
- Updating beneficiaries on plans such as life insurance, IRAs, and 401(k)s;
- Creating funeral arrangements;
- Creating an annual gifting to qualified charitable and non-profit organizations, in order to reduce the taxable estate; and
- Establishing the power of attorney (“POA”) in order to direct other assets and investments.
There is not necessarily a right time in which to accomplish all of the tasks associated with estate planning, as it is more of an ongoing process and can be started as soon as you have any asset base.
How Do I Choose An Estate Executor?
When drafting your will, one of the most important aspects is selecting the person who will manage and execute your last wishes. This legal representative, more commonly known as the executor, becomes the person appointed by the court to oversee all of your property.
Executors have specific duties and responsibilities in order to administer and manage the estate, as they help ensure that debts are paid and that the estate is distributed according to the testator’s wishes. Generally speaking, the executor that is named in the will is a parent, child, or other relative of the testator. However, there are occasions in which the testator may choose to name a close friend as their executor instead. Regardless of who fills the role of estate executor, it should be someone that you trust to take on such a task.
The main duties of the executor are to ensure that any debts or creditors that you had in life are paid off, and that the remaining money and property is distributed to your beneficiaries. Depending on the nature of the estate, the duties of the executor may involve:
- Locating Your Assets: The executor is required to manage and keep your assets safe until they can be distributed to the will’s beneficiaries. This can include ensuring that the accounting of the assets is true and accurate, and making decisions regarding which assets to sell if funds are needed to pay taxes or creditors, and which assets to keep;
- Finding And Contacting Beneficiaries: The executor is generally the point of contact for the estate, and is responsible for ensuring that the property named in the will goes to the correct beneficiaries;
- Filing The Will: The executor is also responsible for ensuring that the will is filed in the appropriate probate court;
- Creating An Estate Bank Account: Creating an estate bank account can keep the estate’s funds completely separate from the executor’s personal funds. Additionally, setting up a separate bank account in the name of the estate can make it easier to pay taxes and creditors. Some recurring payments, such as insurance or mortgage payments, must keep being made during the administration of the estate. Having a bank account in the name of the estate can help ensure such payments remain up to date;
- Paying Off Debts And Creditors: Generally speaking, before any of the estate can be distributed to a beneficiary, the executor must ensure that the testator’s debts have been paid. The executor must send notice of the testator’s death to all creditors and determine how they want to proceed;
- Paying Final Income Taxes: You must pay income taxes after you die, at least one last time. The executor is responsible for ensuring that the testator’s income taxes for the last year of their life are paid in full; and/or
- Ensuring Distribution: The testator’s will has specific instructions regarding who should get which pieces of property, and how to distribute assets. The executor’s overall job is to ensure everyone gets what they are entitled to according to the will.
If you die without a will, the property is required to be distributed based on your state’s laws of intestate succession. These estates do not have executors. Instead, the person who takes care of the process in cases of intestate succession is called an administrator.
Do I Need An Estate Lawyer?
An experienced and local estate planning lawyer can help ensure you have a legally valid and enforceable estate plan in place, especially if you have a considerably large or complicated estate.
An attorney will be best suited to ensuring your estate is managed according to your state’s specific estate planning and intestacy laws. Finally, should any legal issues arise that require interaction with a court, an attorney will also be able to represent your interests in court.