You need a plan
Death and taxes – you know the saying. But have you planned for them? As certain as they are is your need to have a plan. Your plan may not need to be complex, but, again, you need to have a plan.
The plan can be a simple as reviewing the beneficiaries of your life insurance policy and retirement account. You should review how your home, bank accounts, vehicles, etc., are titled. Will you need to probate your estate?
Make sure those who need to know can find important documents and include an inventory list of accounts, assets and liabilities. Consider adding your user names and passwords if you have on-line accounts.
There are “one size fits all” documents available on-line or in books. You may even be able to ensure yourself that they are legally effective in your state. But the real value in talking to an attorney, CPA or trust officer is understanding the full range of tools available to you and making sure they fit your unique needs.
If you don’t already have one, you may need a will. If you have minor children, you need to make sure that your will appoints a guardian. You may also want to consider a trust so that you know your money will be there for them.
If you haven’t written a will, you nevertheless have one – the one provided by state law. The law provides how an estate will be distributed in the absence of a will. Is that how you want it?
Health Care Directives
Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. There are three health care directives that you should have: a Health Care Declaration (or Living Will), a Durable Power of Attorney for Health Care, and a HIPAA Privacy Authorization Form.
A Health Care Declaration or Living Will is a written statement you make directly to medical personnel that details the type of care you want (or don’t want) if you become incapacitated. This can include whether or not you want to be sustained by life-support, receive blood transfusions, have surgery or make anatomical gifts.
A Durable Power of Attorney for Health Care gives someone you choose the power to make medical decisions if you can’t. This person becomes your agent and will have the responsibility to see that doctors and other healthcare providers give you the type of care you wish to receive. The person you choose should be someone you trust completely and with whom you feel confident discussing your wishes for medical care.
You should sign a HIPAA Privacy Authorization Form naming your health care agent. This is a new requirement under the Health Insurance Portability and Accountability Act. Without a HIPAA authorization the doctors and medical personnel cannot release any of your medical records to your health care agent.
Durable General Power of Attorney
In addition to planning for the chance you may not be able to make health care decisions, provide for the chance that you may become unable do a broader range of things. With a durable power of attorney for finances you give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name will be responsible for paying your bills, selling your property, or otherwise handling your finances. The person named should be someone responsible whom you trust absolutely. Planning for your disability may also lead you to consider a living trust.
How does a revocable living trust differ from a will and a living will?
Both a will and a living trust enable you to provide for your beneficiaries and direct how your property will be distributed after you die. With a living trust, you turn over some or all of your property to the trustee to manage while you’re alive. With a will, you keep your property and manage it yourself while you’re alive. A living trust also lets you do something a will can’t do: Spell out how you want your property managed if you become disabled during your lifetime.
What can a revocable living trust do?
provide financial management of your property – You may act as trustee at first and later decide you no longer wish to do so. A trustee or successor trustee you’ve selected can take over the day-to-day property management.
provide property management if you can’t manage your affairs – If you become too ill or disabled to manage your property, your trustee or successor trustee will do this for you. With no trust in place, you may need a guardianship or conservatorship. You avoid the trouble and expense of setting up such arrangements if you have a living trust. If your trust is unfunded when you become disabled, you’ll need to have given someone a durable power of attorney to enable that person to transfer your property into the trust.
provide for minor children when you die – In a living trust, you can make all the provisions for your spouse and children that you can in a will, including naming guardians for minor children.
avoid probate – Property in your revocable living trust doesn’t go through probate after your death. If, however, you die leaving property that never got transferred to the trust, probate usually will be required. One advantage of avoiding probate is confidentiality. A living trust doesn’t become part of the public record. Probate records, on the other hand, are open to the public.
shorten or eliminate delays in distributing your property to beneficiaries – This is another advantage of avoiding probate. The probate process may delay property distribution. With a trust, your trustee may be able to distribute property to your beneficiaries sooner. This is because, unlike probate, a living trust operates without court supervision. Still, even with a living trust, outstanding taxes or claims that you owe money could delay property distribution.
Take inventory of your assets and liabilities. List the value of your home and other real estate, cars, jewelry, artwork and other physical assets. Gather recent statements from each of your bank, investment and brokerage accounts. Make a list of all insurance policies, their cash value and death benefit. Finally, list all liabilities, including mortgages, lines of credit and other debt.
Define your estate planning objectives. To whom do you want your assets distributed, and in what proportions? If these heirs aren’t living at the time of your death, whom do you wish to name as successor beneficiaries? If you have minor children, whom do you want to care for them? What assets do you want to put aside to provide for your children’s ongoing care and education? Whom do you wish to manage your affairs if you become disabled and distribute your assets upon your death? Who will make health care decisions on your behalf if you become incapacitated? Answering these questions before you meet with an estate planner can save you both time and money.