It is said that the only certainties in life are death and taxes. Estate planning is about planning for one while minimizing or eliminating the other. Estate planning is one of the hardest things to do, as it makes us focus on the fact that we won’t live forever. At Swartz Law, the focus is on you, your family, and the best way to plan for the future to give you peace of mind that your wishes will be carried through. Developing a plan regarding your estate will help to take care of your loved ones.
Many people ask whether they can prepare their own estate documents with a form off the internet, or even using one of those programs at the store. You can also perform your own surgery, or fill your own cavity, drafting your own estate planning documents is just as hazardous.
There are many tools available for an estate plan, and this will briefly outline some of those tools. Just like no two people are alike, no estate plans should be exactly alike. Your estate plan will be personalized to fit your objectives and goals, not the other way around.
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Will: A will is a legal document that details how a person’s property will be distributed upon death. A will can be revoked or changed at any time before a person passes away or becomes incompetent. A will can also nominate a custodian and guardian for a person’s children.
Living Will: A living will is a legal document about whether a person wishes the use of life-support treatment when that person is terminally ill or permanently unconscious. The living will is a person’s statement whether that person wants artificial feeding and fluids to be withheld in addition to the life support treatment. The living will gives the doctors the authority to “pull the plug” if the person is in a terminally ill or permanently unconscious.
Health Care Power of Attorney: A health care power of attorney is a legal document that gives another person authority to make health care decisions for you if you are unable to make them for yourself. Normally, your spouse is your “go-to” person to make health care decisions for you when you cannot. But, what if your spouse is unreachable? Or, what if you don’t have a spouse? The health care power of attorney works in conjunction with the living will to direct the health care provider to follow the health decisions that you made.
Durable Power of Attorney: A durable power of attorney operates much like a health care power of attorney, but it isn’t limited to making only health care decisions for you. A durable power of attorney (“POA”) gives a person you trust the authority to do things on your behalf, all of which are spelled out in the POA. The POA normally stays in effect even if you become incapacitated or incompetent. This may avoid the need for someone to be appointed as your guardian in the Probate Court.
Trust: A trust comes in many different types and has many different purposes. Professor Alan Newman was my Wills and Trusts professor in law school, and he used to say that a trust is special, as it is only limited by the mind of the person drafting it. There are far too many variations with trusts for a brief outline, but some similarities are that each trust will have a person who creates it, called a “Settlor”; a person or persons who manage the assets of the trust, called a “Trustee”; and a person or persons that are going to benefit from the trust’s purpose, called “Beneficiaries”.
A trust is the most used tool for those people who want to “avoid probate,” the court process where a person’s estate is administered. Some of the other common purposes of using a trust are: a parent protecting a child from getting all the parent’s assets at once and then spending it so quickly that they have nothing left; a parent protecting a child from his/her creditors being able to get the parent’s assets as soon as the parent passes; a parent setting up a trust to pay for college; or even a husband and wife protecting a minor child from inheriting all their assets while they are a minor.
As you can see, these tools can all work together to get you to your goal. Contact Swartz Law to begin to get your estate plan personalized to fit your objectives and goals.