Many people are intimidated by estate planning or they think only wealthy individuals need plans (or both).
Almost everyone has an estate. If you have something of value (assets) that you want to pass on to loved ones when you die, you have an estate. This can be money or property or items like life insurance funds. Regardless of how many assets you have, to ensure they end up in the hands of the people you want to have them, you need to create an estate plan.
An estate plan can be as simple as having a will and naming a beneficiary for your 401(k), or as complicated as having several trusts for different purposes in addition to your will.
A Simple Will
A will is the cornerstone of all estate plans. It states what you want to happen to your property in the event of your passing. After you pass away, the will is used in public court in a process known as probate to make sure your wishes are handled fairly.
It doesn't need to be long and it doesn't need to be complicated, but a will is an essential document. In it, you decide who will make sure the will is followed (the "executor") and you will state where you want your assets to go. If you have an executor you trust and a well-written will, your estate should end up where you want it to.
Key questions to keep in mind:
A will does not become legally enforceable until your death; therefore it may be changed at any time before death (or mental incompetence). Every adult should have one.
A Living Will / Healthcare Proxy
A living will focuses on the health care directives that will be followed in the event you become mentally incapacitated by an event such as a devastating illness or injury. With a living will, you can outline whether you want your life to be artificially prolonged or not, what methods should be used to try to save your life, and things of that nature.
A living will is often combined with a "healthcare proxy," which means you designate a certain individual who you trust to make your decision for you if you become incapacitated and certain questions fall outside the scope of your living will. The living will and the healthcare proxy together are what is known as an "advanced health care directive." This saves family members and medical personnel potential uncertainty and preserves your wishes.
Power of Attorney
A power of attorney allows you to choose a person who can sign certain documents on your behalf. A power of attorney can be very broad (a general power of attorney) or it can be very limited in scope (limited to the signing of only certain legal or financial documents or even particular to a specific transaction, such as the sale of a property).
Life Insurance / Beneficiary Designations
Questions of life insurance policies and other financial tools requiring beneficiaries can be complicated. Should you buy life insurance? What kind of policy? What kind of retirement fund should you own? Etc etc etc.
What is not complicated is the adding beneficiaries to these accounts. The forms are usually easily accessible and fairly straightforward. You simply name those who you want to receive the assets and the percentage each should receive upon your death.
Important note: A simple will only transfers property that you own in your name alone. Therefore, anything that passes by beneficiary designation, such as life insurance proceeds or retirement assets, cannot be transferred by will. This is why the beneficiary designation is so important.
A Master Document for Your Loved Ones
This is not a legal document, but it is a good idea. You should create a document explaining all of your assets and debts and everything that needs to be done to close them out and get the assets in your accounts to the people that should have them. This kind of document can be a big help to your loved ones in a time of grief. Prepare such a document and ensure all your loved ones have a copy.
Estate planning is a means of not just planning how things are passed on when you die, but also protection against liens from creditors (Medicaid/Medicare, for example), minimizing tax consequences, planning for medical incapacity, and providing a meaningful legacy for family, loved ones and possibly charities.
Everybody should have at least a basic estate plan in place. It is important to create one while you are still of sound body and mind; accidents happen and you want to be prepared. The good news is that the process does not need to be complicated or lengthy.
And our Staten Island law firm can get you started today.
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This information, based on New York law, was provided courtesy of The Law Office of Christopher J. Arrigali, P.C. It is intended to inform, not to advise. No one should try to interpret or apply any law without the assistance of legal counsel.