Estate planning is not just for those who are fast approaching retirement or for those who have a large fortune to protect from estate taxes or probate fees; no matter what stage of life you are in or how much assets you have, estate planning is important. Why? Estate planning seeks to maximize the value of an estate by reducing estate taxes and other costly expenses when a loved one dies without either a will or a trust. It encompasses discussing whether your unique situation requires only a will or a will and a trust. If you need a trust, estate planning attorneys help determine what kind of trust best suits your needs. It also involves establishing the physical and financial guardianship of minor children and end-of-life decisions regarding medical care. Estate planning encompasses all of the services listed above.
Guardianship of Minor Children
If you have minor children, nothing can be more important to you than formally arranging for their physical and financial guardianship which must be accomplished by a will. The consequence of not naming a guardian for your minor children is that a judge will make that determination on your behalf. Whether it is important to you that a particular person be your child's physical guardian and another be their financial guardian or perhaps you have family members who you do not want to have guardianship of your children, it is crucial that you put these wishes in a legally binding document. Litigation over guardianship of minor children will only add to the emotional and physical uncertainty they will experience if you and your spouse pass unexpectedly. Shawna can help insure that your children will be raised and cared for by the person(s) you have carefully chosen so that you can leave the kids at home and take that carefree second honeymoon overseas with your partner.
Health Care Directives
One of the most important and compassionate things you can do for yourself is to put your wishes concerning medical care and end-of-life decisions in writing. Most people do not talk about these things and, once they do, they often find that their partner's, parent's, or child's wishes differ greatly from their own. These differences make it more likely that your loved ones will not following your wishes simply because they were never known. The added complication is the second-guessing, arguments, and possible litigation between a surviving partner and family members who have different view points as to their interpretation of your wishes. Whether you strongly desire not to have your life artificially prolonged, want your partner to try all available experimental treatments and maintain you on life support for as long as possible, or are somewhere in the middle, Shawna can help you clearly put your wishes into a legally binding document. Perhaps you are facing a life-threatening illness or you just want to go on that motorcycle ride down the windy coast side; knowing that your wishes regarding such personal issues are known is a great way to put yourself at ease. This also includes a HIPAA/CMIA Release so that your health care agent can actually discuss your medical condition with all medical providers. Without this release, medical providers can not speak to your health care agent, so it is vitally important that your Advance Health Care Directive includes a HIPAA/CMIA release.
Powers of Attorney
Why it is important to have a Power of Attorney? What happens when your spouse is alive, but unable to handle or manage their finances? If they do not already have a completed Financial Power of Attorney, you or another loved one will have to go to court to obtain authority over their finances via conservatorship proceedings. These proceedings can be mentally and financially draining for all parties involved. While your loved one is incapacitated, they will likely still receive income such as disability, pension, annuity, and/or Social Security payments and their debts will still be due and payable during. Without a Power of Attorney, you will be unable to access your loved one's various accounts, communicate with insurance carriers, financial institutions, and government agencies about their benefits. You will not be able to take care of their finances until they have been conserved. A Financial Power of Attorney is undeniably important in cases where you have received devastating news of a terminal disease, but it is just as important for the family who treks to Tahoe on weekends to ski or the single parent who surfs Mavericks on occasion.
Probate is a three-fold process of determining first whether a will exists and, if so, whether it is valid, second transferring property from someone who has died and lastly resolving all of the financial responsibilities of the deceased. The probate process can take 9 months or longer.
Simply put, a trust is a legal entity which is created when a person places something of value in it. In the context of Estate Planning, people place property in a trust so that, after a loved one's death, their survivors can avoid the probate process which can be lengthy and costly thereby using up a good portion of a loved ones assets. Trusts can also be used to significantly reduce or eliminate Federal estate taxes such that a surviving spouse would have minimal to no State or Federal estate taxes. Another reason people prefer to leave property to loved ones in a trust rather than a will is when you would like to provide for a sibling or child, but they are for whatever reason unable to control their spending habits and would quickly squander their inheritance. Yet another reason to place property in a trust rather than a will is, if you leave money to a child or sibling in a will and they are also receiving Government benefits such as Supplemental Security Income (SSI) and Medicaid, they can immediately become ineligible for these benefits because of money inherited through a will. Whether a Testamentary Trust, Living Trust, Bypass Trust, QTIP, QDOT, Special Needs Trust, or even a Charitable Trust, there are many different kinds of trusts that can be used to accomplish many different goals.
Administering a loved one’s trust is the task of documenting all assets and insuring that they are distributed to beneficiaries in a manner consistent with the loved one’s wishes as expressed in their Trust. Attorneys are not required for this, but some successor trustees feel more comfortable having the help of an experienced attorney during this process. Shawna is available to assist with the process.
Wills are crucial not only when it comes to establishing guardianship of minor children and who will have control over their finances when you and your spouse are gone, but they also clearly outline who is to receive which assets after you die and perhaps who is not to receive any. If you have strong beliefs as to whom you want to receive particular items, you must have a detailed will. If you do not have a will, then the courts will not only decide who will have guardianship over your minor children and their finances, but the courts will also determine, based on the Probate Code, who will get all of your assets. Not having a will invites disputes among family members which leads to protracted and expensive litigation and can result in a deeply divided family.