Estate Planning Checklist
In this section from his book, “Pankauski’s Probate Litigation: Top 10 Estate Mistakes Revealed”, John Pankauski explains what is included in a “simple” estate plan.
Estate Planning 101: So – what do you need in your “simple” estate plan?
Often referred to as a “Last Will,” a will disposes of any property, which doesn’t “go” by way of trust or beneficiary designation, or other “will substitutes,” such as joint bank accounts. A will also appoints the person you choose to “run” your estate, or who should be in charge of the probate process when you pass – a so-called “executor” of the estate, sometimes referred to as a “personal representative” or even the “executor of the will.”
When you change your will, you can revoke prior wills and create – or write and sign – a new will, or you can simply amend your will by a codicil. Today, with the now widely-accepted use of a revocable trust, most wills are “simple” or “pour over wills.” They don’t typically leave any inheritances other than to give everything to, or pour over any estate assets into, one’s revocable trust.
(AKA: “Living Trust” or “Revocable Living Trust”)
Also called a living trust or a revocable living trust, this can manage your property during your life – such as when you are incapacitated, or if you didn’t want to manage your property any more – as well as at your death. The revocable trust is “change-able.” It may be amended or revoked by you, the creator of the trust, while you’re alive and competent. Once you pass, it’s irrevocable.
After your death, your trust typically distributes – or not – your wealth, in the ways you want people to receive an inheritance: outright, in trust, or otherwise.
Remember that assets with so-called “beneficiary designations” – such as insurance policies, pay on death accounts, joint tenancies with a right of survivorship, as well as retirement accounts and IRAs – typically “go” “outside” of probate or any trust automatically and by operation of law.
It seems that the revocable trust has become the main dispositive vehicle for Americans’ wealth today. Everyone’s got one. It gives all your “stuff” away and, to a great extent, replaces the will as your “giving vehicle.” But, note that you can’t simply leave property in trust and think that property can’t be used to pay your debts and the expenses of administration.
Power of Attorney (POA)
A power of attorney is a document, which gives someone you choose – called a power holder, or agent, or attorney in fact – the authority to do things for you and in your place. An attorney, in fact, is actually a fiduciary who is supposed to use your POA according to the law and the terms of your POA, for your benefit. Most states, like Florida, have specific, detailed laws about POAs and what a POA can be used for. A POA is typically effective as soon as you sign it. Since a POA is, sadly, one of the “weapons” obtained by, and mis-used by, those who financially exploit others, be careful about who you “give” a POA to, and what authority is granted. Paying your bills or filing your income taxes is one thing – but, do you want your POA to change your beneficiary designations? Make gifts? Withdraw funds for purposes other than helping you? Sadly, mis-use of powers of attorney has turned into almost a sub-specialty of the law and is very common. While you generally cannot use a POA to re-write someone’s will, whether you can use a power of attorney for other estate planning purposes varies from state to state.
If you want to appoint someone to make healthcare decisions for you, if you’re not able to, then you need to put that in writing. These empowering documents may often be referred to as a health care proxy, or advance directive, or something similar. If you want to express your desires or intent for your care, then consider a living will or DNR (do not resuscitate order), or other document, which tells health care providers what you’re thinking, if you’re not able to communicate. If you’re in a terrible accident and are in a “persistent vegetative state” and want to be – or don’t want to be – sustained by artificial means (often thought of as being on a respirator and a life-sustaining machine), then put it in writing. Most hospitals will ask you if you want, or whether you have, a “do not resuscitate” order when you’re admitted.
Guardianships? For adults? Yes, guardianships aren’t just for minor children.Most people think only minors need a guardian. The truth is, our life expectancies are increasing and now – more than ever – you and I each stand a greater chance than ever before that we’ll be incapacitated before we die. Guardianship for adults is very common in Florida. As you might already guess, guardianship litigation is also a growth field. Is a guardianship necessary? If so, who will control you, your personal decisions, and your freedoms – and also your money? You can pre-determine who is in charge by naming your guardian or successor guardians in estate planning documents now. You should coordinate with your revocable trust and POA. These documents, if in place, may mean that you don’t need a guardianship, even if you become incapacitated and can’t care for yourself.
Pankauski’s Bottom Line: You should spend more time than money planning your estate.