Common estate planning essential documents consist of the following:
- Durable Financial Power of Attorney
- Durable Health Care Power of Attorney
- Joint Accounts
- Living Will
A Will is a legal instrument by which a person directs where his or her property is to be distributed following his or her death, and who controls the process. If you die without a Will, then the laws of your state, called the intestacy laws, will control where your property passes after you death. That distribution path may or may not match or may be in direct opposition to what you want to see happen with your property.
So, having a Will lets you set up where or to whom your property will pass to, and who shall over see that process. A Will also can provide your “voice” to recommend who you would want to be the guardian appointed for your minor children, should there be a need to have a guardian appointed for them following your death.
A Will would also be the method to set up a Trust for your minor children or any other loved one who may need to have someone manage their property, and the Will would allow you to name the Trustee, the person who would manage the Trust.
Upon your death your Will would be admitted to your local county probate court which is the court having general powers over the general validity determination of your Will and the administration of your Estate. Thus, your Will would be admitted to Probate, and the administration process of your estate would then begin.
The person or persons whom you named in your Will to be the legal representative for your estate would then be appointed by the Probate Court so that they would have the legal authority to handle the distribution of your property as you set up in your Will.
Not all property that you own will be part of your Probate Estate, and thus will not be controlled by the terms of your Will. Property that has a designated beneficiary already or is owned by you and another individual with the right of survivorship will pass directly to that designated individual or individuals or joint owner upon your death.
Property that typically has a designated beneficiary would include a life insurance policy, retirement accounts such as an individual retirement account (IRA), a 401(k) or 403(b) plan, or certain financial bank or investment accounts that allow designated beneficiaries.
Durable Power of Attorney
A Power of Attorney is a legal document which you can use to authorize another person, called your agent, to handle your affairs and make decisions on your behalf, if you are unable or unwilling to do so. Your designated Agent has a legal responsibility, called a fiduciary obligation, to act on your behalf and best interest when making decisions or handling your affairs.
A Durable Power of Attorney is a legal document that will continue on following a determination that you are no longer mentally able to handle your own affairs. Any agency appointed or created by you under any Power of Attorney will be revoked or terminated upon your death. The agent’s powers created under a Power of Attorney can be general powers or specific powers, determined by you.
A Durable Financial Power of Attorney would allow your Agent to handle your financial affairs or accounts for you while you are alive. It is thus very important that you appoint an Agent whom you trust to handle your money and make financial decisions for you.
A Durable Health Care Power of Attorney would allow your Agent to make medical decisions on your behalf, have access to all of your medical records, and be able to admit or withdraw you from a nursing home.
As you reach your advanced age, or have health issues, having both of these types of Power of Attorney forms allow usually family members, or close friends to assist you with your many daily living functions or activities. Note that as long as you are mentally capable, you will always retain the legal authority to make your own decisions, but the Agent may act on your behalf when there are times where you, the Principal, are unable to do so.
Having these documents also eliminates the burden of your family members or friends of the need to seek a court appointed guardian should you become incapacitated, a process that can be expensive and result in some whom you never would have wanted as someone appointed to handle your affairs.
Another way to appoint someone to be able to handle your financial accounts is to make that person a joint owner on your account. This would allow that person to become a joint owner on your account. That joint owner would thus be able to access your funds in the account and make decisions concerning the account such as writing and signing checks, making deposits and withdrawals or any other transaction.
It is important to understand that a join owner is considered a legal owner of the account, regardless of who actually put the money into the account. Also, upon your death, your joint owner would be the person who would receive the funds in the account upon your death.
Rather than making a person a joint owner of the account, you can have a person designated as an authorized signer. An authorized signer would be similar to an Agent under a Power of Attorney, and would not have actual ownership rights to the account and would not inherit the funds upon your death.
A Living Will is a legal document to be used by you to indicate in writing what type of life sustaining medical treatment you would or would not want to receive if you were in two specific conditions: a permanent state of unconsciousness, or already having been diagnosed with a terminal disease.
The purpose of a Living Will is for you to tell your family members or loved ones, in writing, whether you want to be medically treated to be kept alive if so doing would merely be prolonging your death. In so doing, you would be relieving your family members or loved ones with the responsibility of having to make such a decision.
Another name for a Living Will is an Advance Medical Directive. It is important to understand that a Living Will or Advanced Medical Directive is only effective when you are incompetent, in a permanent state of unconsciousness or in an end stage medical condition (already diagnosed as suffering from an incurable and irreversible medical condition or disease that will in the opinion of your attending physician to a reasonable degree of medical certainty result in your death).