Wills, Trusts, Estate Planning

  A Will is an instrument by which your wishes regarding your property (estate) are relayed to a responsible individual ( executor) upon your death. The Will simplifies the process of distributing your estate for the executor, as well as the people whom you designate to receive your estate (devisees). Because you trust the persons you are appointing to be executor and contingent executor, the Will always says that these persons will serve "without bond."

Without a Will, the probate process is more complicated, more burdensome, and much more expensive. If your heirs cannot agree on who should be appointed Administrator, your estate will spend thousands of dollars to resolve that dispute.

Without a Will, even if your heirs agree on who should be appointed to administer your estate, the process is still quite expensive. This is because the estate will have to pay for a bond ( essentially an insurance policy that will pay the other heirs if the Administrator dishonestly deprives them of their rightful inheritance). If the estate cannot be settled within a year, the bond has to be renewed at the same price.

A Will may be a very simple instrument, designating an executor, devisees and how you wish your estate to be distributed among them. Modem Wills, however, also address the funeral and who will be your funeral representatives. If you have preference for or against cremation, that desire should also be put in your Will. If you are not sure, however, that decision can be left to your funeral representative.

More complicated Wills may also establish trusts for minors or children/grandchildren with special needs. They can also set out restrictions with regard to at what ages certain individuals receive what portion of their inheritance. If you are leaving anything in your estate to minor children, it is always advisable to establish a trust and appoint a trustee to receive this portion of the estate until a minor reaches a designated responsible age. We typically recommend that the age at which a minor child receives the full inheritance be 23. However, the trustee is usually also instructed to use the funds in the trust for the education, health and maintenance of the young person during the years prior to distribution.

  We have all heard horror stories of hospitalized patients receiving treatment which they would not have wanted, or prolonging their death contrary to their wishes. A Living Will serves to definitively set out your wishes in case you are unable to do so, and appoints a representative to act on your behalf. The terms in a Living Will may simply direct the treating physician to refrain from resuscitation should your heart stop, or instruct the provider to take all efforts to resuscitate you. A Living Will may also instruct medical providers to withhold or provide hydration, nourishment, or pain medication. You may also set out specific instructions should doctors determine that there is no hope for you to regain consciousness or recover from a coma.

Often family members are unaware of your wishes in these matters, are unwilling to follow your wishes, or their instructions are ignored by medical providers. In order to ensure that your wishes are followed, for peace of mind, a Living Will is an inexpensive investment.

Our Living Wills also include several pages of Medical Power of Attorney instructions. These instructions enable the person or persons that you designate to obtain your medical records, deal with your doctors if you are disabled from doing so, and to take appropriate steps to protect your health prior to the "end of life" stage.

Because we combine both the Living Will and the Medical Power of Attorney into the same instrument, we can provide this to you very cost effectively. Preparing two separate instruments creates an extra, and usually unnecessary, expense.

  Should you become suddenly disabled from a traumatic injury or condition, it may be necessary for a representative to go to Court to be appointed as a custodian to maintain your financial affairs, such as pay bills or operate a business. In Estate Planning, a Power of Attorney may take effect upon your disability, and may be drafted as broadly or narrowly as you wish. You may give a responsible person the power to handle all of your financial affairs should you become disabled, or simply have access to a single bank account to pay a mortgage and utilities.

When you schedule a consultation to prepare a Power of Attorney, you should be ready to designate a responsible person to take care of your affairs, and an alternate, as well as an idea of how much responsibility you wish to give them. You should also speak with this individual to ensure that they are willing to take on this responsibility, and that you trust them. Please keep in mind that, upon your disability, this person will be responsible for your affairs. Typically, spouses give each other Power of Attorney, and an alternate in case both become disabled simultaneously.

If you have a very responsible child, however, we often recommend that your spouse and that child be appointed "joint" powers of attorney, so that either can make a determination in your best interest. This insures that, if your spouse develops poor health, the child can take over handling the affairs without having to get doctor certificates proving that the spouse can no longer serve in that capacity.

  There are numerous variations of trusts, and our office has the technical expertise to draft a trust that fits your needs. Those needs may be to protect a person with "special needs" from being disqualified from receiving Medicaid and SSI merely because they have received an inheritance. An improperly-drafted trust is fraught with significant potential complications. Those complications can result in adverse tax consequences and also frustrate its very purpose.

Other trusts are drawn to protect the interests of minors. Trusts are also highly effective in shielding assets from potential creditors of beneficiaries who might otherwise recklessly spend the gift or inheritance due to fiscal irresponsibility. A trust is also quite useful when it creates detailed instructions to the designated trustee as follows:

To use the assets (most often real estate and/or investment accounts) for the benefit of the granter-the person who creates the trust - during the grantor's lifetime. It then also includes detailed instruction for steps the trustee must take to benefit the designated beneficiaries after the granter dies. This type of trust, known as a grantor's trust, is usually highly effective in protecting assets from needing to all be spent for long-term care, while also creating a "mini Will" as to the distribution of those assets after the death of the granter.

  For information about Living Trusts please contact Jacob Law Group at (856) 825-0700.