Estate Planning: Answers to Common Questions

Q: Why Have a Will?

There are many reasons why you would want to designate how your affairs are handled after your death. You may want to preserve your property for your family and friends, and direct specific property or specific amounts of property to specific persons. Even those of us with little or no property will want to designate a guardian for minor children. You may also want to minimize taxes and makes things as easy as possible for your family.

Q: What Are Some Common Elements in a Will?

Here are some common elements that may be found in a will:

  • Identification of Family Members: This can defeat claims by people claiming to be illegitimate children, and can also settle the status of adopted children or stepchildren.
  • Tangible Personal Property: Household and personal effects are unique and serve as a link between generations. You may wish to make a list of who will inherit certain items, such as a particular piece of jewelry.
  • General Bequest: A bequest of $500.00 to each grandchild is a general bequest.
  • Specific Bequest: A bequest of the vacation house is a specific bequest.
  • Residue: The residue is what is left over after the tangible, general and specific bequests. For example, "Everything to my spouse, but if no spouse, then everything to my children."
  • Minors and Incompetents: It may be prudent to provide for management of assets left to minors or incompetents. Without such a provision, such assets will be managed by the courts, which is expensive and inconvenient.
  • Tax Clause: Who pays the tax on the bequest of an amount to your grandchild? Does the grandchild pay it, or does it come out of the residue?
  • Fiduciary: This is the person or institution appointed to manage, invest, and distribute funds, such as the executor or trustee.
  • Guardian: This is the person appointed to take care of minor children, should both parents be deceased.
  • Informal Settlement: Some states have informal settlement procedures that are faster and less expensive than the traditional probate process.
  • Revocation Clause: All wills should revoke any prior will.

Q: What is the Difference between Probate Property and Non-Probate Property?

Probate property is controlled by your will, and non-probate property is not. Some examples of non-probate property include: jointly held property, life insurance, and trusts.

Q: What Are Death Taxes?

At the time of your death, the assets which you have accumulated during a lifetime of hard work are subject to tax by both the federal government, and the state government where you are domiciled. Any real estate will be subject to tax at its location.

This area of law can be quite complicated. It is important to know what exemptions, deductions and credits may be available, and what options are available to reduce estate taxes.

Q: What Does an Executor Do?

Your executor is a fiduciary who is responsible for settling your estate. This means gathering together your assets, paying your debts and death taxes, and making distribution to your beneficiaries. In the meantime, your executor must keep property insured, decide what should be sold, invest cash, obtain appraisals and file income tax returns. This process can take one or two years.

Q: How Do I Avoid Probate?

The probate process can be time-consuming and expensive; many people seek to avoid it. Here are some examples of ways that can avoid probate:

  • Lifetime Revocable Trust: Establishing and funding such a trust requires transfer of all securities, and other assets. At death, a "pour over" will can transfer into the trust any property which is not already there.
  • Joint Property: Joint property passes to the surviving joint owner.
  • Life Insurance and Pension: These pass to the contract beneficiary.

Q: What Does "Intestate" Mean?

If you die without a will, you die "intestate." Each state has "intestacy" laws which determine who will receive the property of intestate decedents. It is important to remember that "non-probate" property is not controlled by these rules.

Q: How Does a Power of Attorney Work?

The purpose of a power of attorney is to authorize someone else to act for you if you are not able to act for yourself. The power of attorney can be very broad, and cover almost any problem which may arise, from paying the bills to selling the house. A "durable" power of attorney means that it remains effective if you become incompetent. For real estate transactions, the power of attorney must be recorded.

The person with the power of attorney is often referred to as an "attorney-in-fact." The attorney-in-fact is a fiduciary, bound to act in the interest of the principal. The attorney-in-fact should keep complete and detailed records of all receipts and expenditures, and be able to explain to the principal what he or she has done.

You may revoke a power of attorney at any time by notifying the attorney-in-fact. This should be done by writing. If the power of attorney has been recorded, the revocation must also be recorded. Death of the principal terminates the power of attorney. Authority then passes to the decedent's executor.

Q: What is an Advanced Health Care Directive?

The advance health care directive, also known as a living will, has two purposes. The first is to appoint someone else to make health care decisions for you, in the event that you cannot make such decisions for yourself. The second purpose is to give that person some guidance in making those decisions. More information can be found in FindLaw's section on Living Will Basics.

Estate planning can be complicated and may require the assistance of an experienced estate planning attorney.

Next Steps

Contact a qualified estate planning attorney to help you ensure that your loved ones are cared for and your wishes are honored.

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