The average American works 2,000 hours a year for 40 years to acquire what is commonly known as an estate. Time and consideration should be spent as to the orderly collection of your assets, those persons and/or charities most deserving to receive your assets, and the proper team of individuals to assist in the orderly settlement of your estate. Working with an estate planning professional can help articulate your goals and devise a plan that minimizes expense, delay and acrimony.
Your Will is a document which directs how your property is to be disposed of at your death. It designates a person responsible for assembling that property, for paying debts and taxes, and for distributing whatever property is left. A Will may provide for the appointment of a guardian for minor children, for a trustee to manage property, and/or for money to be used for someone's benefit.
A Will allows you to specify how your property is to be disposed of at your death and permits you to appoint the person who will carry out our wishes. If you die without a Will, your property will be inherited in accordance with the laws which may not reflect your desires. If you have no spouse or close relatives and die without a Will, the State may take your property; someone you did not choose will have to be appointed to take care of your property, and that person may have to post bond. This expense can be avoided with a Will.
The present law provides your spouse with a right in your estate. There are ways to limit your spouse's right or to prevent your property from being inherited by people whom you do not want to benefit after your spouse dies. Providing for these limitations requires a lawyer's assistance.
You should review your Will every three to five years, with an eye towards changes in State and Federal laws and your own family dynamics.
This document enables you to designate either yourself, another person or a professional (such as a bank or other financial institution) as your Trustee. The person named, normally has a responsibility to review your investments, make recommendations where appropriate and make changes based upon your investment goals and objectives.
A Revocable Trust may enable your Trustee to act on your behalf, without your approval, especially should you become disabled. This is a means of preventing a court appointed guardian. A Revocable Trust may also avoid probate.
Not everyone needs a Revocable Trust Agreement. However, you should always consider the following questions:
A professional trust offers certain advantages
a. Continuity of management by more than one individual.
b. Errors and omissions insurance.
c. Regular statements that reports market value, gains and losses, rates of income, changes in investments, where income has been applied.
d. Trained staff of trust administrators
Are you protected in case of a disability? Have you given anyone the authority, whom you can trust, to make both simple and everyday decisions for you? Should you either be away on vacation or ill, does anyone have your permission to do these things for you?
A Durable Power of Attorney may be the solution. It enables someone to act on your behalf. It gives authority to pay bills, borrow money, complete tax, medical and other forms for you. Therefore, it is a power not to be given lightly. You may also appoint another person, as Alternate, if your first choice should be unable to act on your behalf.
The Power of Attorney may, rather than being "durable" be a "limited" power. This either limits the person's authority to act on your behalf only "if" you become you become disabled. That would normally require a physician's written report to confirm you are unable to manage your personal and financial affairs. Limited Powers of Attorney may also be only over a certain bank account or for a limited period of time. The difference between the two, "durable" and "limited" is the durable can be used by your agent anytime, regardless of illness; the limited Power of Attorney can only be used if and when, but not before you become disabled.
Clearly, the durable Power of Attorney provides more flexibility and power, and therefore, should not be granted liberally.
Should you be unwilling to give power to any individual, consider Guardianship and/or a Revocable Trust.
Most people think of the story of Karen Ann Quinlan, the twenty-one year old who was put on life support systems. Her family had to petition the New Jersey Supreme Court to be permitted to allow her to "die with dignity". The Court did recognize that a people's right to privacy includes a right to determine whether or not to accept medical treatment.
Today, New Jersey and most other States have adopted "Living Will" statutes which embody these principles of a right to privacy and self-determination. A Living Will permits you to decide what, if any, forms of treatment you desire if you become seriously ill. These include, suffering from an irreversible illness, life support systems, terminal illness, cardiopulmonary resuscitation and the like.
A Living Will also enables you to select that person you desire to act on your behalf for other health care decisions. These include the hiring of physicians, nurses or other health care personnel, the placement in, or removal from a hospital, or arranging for your treatment at home.
It is important to remember that a Living Will is revocable, and it is only relied upon in cases where you are not capable of speaking on your own behalf.