Last Will & Testament

A will is the legal instrument that permits you to make decisions on how your estate property will be managed and distributed after your death.  We commonly refer to wills as "below ground" planning because they take effect only at your death.  In a will, you also nominate a person or persons to administer your estate, known as the Personal Representative(s), and who you nominate as Guardians for minor children.  Because a will is a below ground planning instrument, you do not have the opportunity to take advantage of several protective strategies available with other types of planning during your lifetime.

A will mandates your estate go through the court Probate process to collect assets, pay creditors and distribute assets to beneficiaries. (Estates valued at less than $50,000 can use a small estate affidavit instead of the Probate process.)  If a will has been poorly constructed or does not strictly adhere to state laws, it may be considered invalid.  Additionally, a poorly drafted will is more easily contested by disgruntled heirs, people you disinherited, or others wanting a piece of your estate.

Another important thing to understand is that a will is not a private instrument because it is filed in the county where you lived at your death.  Once a will is filed with the county, it becomes available to the public.  Identity theft has become an issue for decedents because identity thieves can easily obtain public wills and use the information to commit identity theft.

Revocable Living Trusts

A revocable living trust allows you to take advantage of planning opportunities available to assist you during life and at death.  For this reason, we refer to living trusts as "above ground" planning.  With a living trust, you identify how and to whom you will pass your estate, but unlike a will, you can also plan for property management if you become disabled at any time during your life.  This planning opportunity also helps avoid a court conservatorship when a person becomes disabled.

When you have a revocable living trust, you can manage your property just as you always have.  There is no separate tax identification number and they do not require a separate tax return.  A living trust is a savvy planning tool to help you during life and transfer your estate at death.  Living trust planning provides advantages over wills and three of them are:

     1.  Privacy
          Trusts are private.  Trusts are typically not public documents during life or after death.

     2.  Probate Avoidance
          Properly funded trusts (when assets are properly titled and beneficiary designations are coordinated) avoid the need for the
          court Probate process after death.  Probate avoidance creates an opportunity for estate settlement to be more efficient and
          less costly.

     3.  Disability Planning
          A properly drafted living trust avoids a court conservatorship process should you become disabled.

Living trusts are completely revocable and amendable during life. During life, a living trust holds assets, but you retain complete control of those assets.  Trusts can be designed to minimize or eliminate estate taxes and are one way to utilize both federal tax exemptions for married couples.  A trust can also provide flexibility in how beneficiaries receive their inheritance.  You can provide very specific instructions about how you want your beneficiaries to inherit from you, including mandating limitations on distributions for beneficiaries who have poor financial skills or have substance abuse issues.  There are many choices when you control how your planning will occur.

With our counsel, your planning is customized with you, not for you, as we assist you in identifying your objectives and reaching your goals.

15 Point Client Care Plan

Estate Planning Goals

Top Ten Estate Planning Mistakes

Estate Planning Wheel 

Getting Started:  Estate Planning


Ancillary Documents

General Durable Power of Attorney

A General Durable Power of Attorney (also known as a Financial Power of Attorney) is an important legal document during your lifetime.  Using a Power of Attorney, you can choose someone you trust to handle your financial affairs and property in the event you become incapacitated.  Depending upon its terms, your designated Agent can do most anything you can do, such as sign checks, pay bills, transfer funds, file taxes, and manage your business affairs.  This instrument only works while you’re alive.

Although you might assume that your spouse, family, and friends will handle your affairs if you are disabled, absent a properly drafted General Durable Power of Attorney or Revocable Trust, they may be forced into expensive, cumbersome and time-consuming court process to appoint a guardian and/or conservator for you.  With proper planning, this can be avoided.

It’s also important that you have a professionally drafted Power of Attorney.  Internet and office supply store forms are often generic, not customized, and may not include the appropriate authoritative provisions specific to you.

We also recommend that you appoint an initial agent and successor agents.  Depending on your circumstance a variety of different provisions may be appropriate.

Healthcare Power of Attorney

The Healthcare Power of Attorney gives you the ability to choose someone you trust to make your medical decisions if you are unable to communicate.    In addition, you also instruct about the kind of medical assistance you want to receive, such as surgery, medication, and other medical procedures.  Giving instructions before the need occurs ensures that your agents follow your wishes and beliefs. This instrument is different from your Living Will.

If you plan for yourself, your family and friends may have to endure a court process to gain control of your care and are forced to make decisions with your healthcare providers without your guidance.

Your Healthcare Power of Attorney should also include HIPAA (Health Insurance Portability & Accountability Act) Authorization provisions authorize your healthcare providers to release health care information to your named agents.

Standalone HIPAA Authorization

As part of the Healthcare Insurance Portability &Accountability Act (HIPAA), Congress enacted federal privacy laws to protect a patient's personal health information (PHI).  Under the HIPAA privacy laws, a healthcare provider is only allowed to share PHI about a patient for treatment, payment and as part of the health care delivery process.  A medical provider cannot share your PHI with any other person, unless you authorize them to do so.

The privacy laws are strict and medical providers face monetary penalties if they share your PHI without your authorization.  This means that if you want your family, friends and loved ones to be able to communicate with your healthcare providers about your care, you must authorize your PHI disclosure in a HIPAA Authorization.  If you have not planned, your loved ones may not be able to receive information about you from your healthcare providers.  Often a standalone HIPAA authorizes release of PHI to your Health Care Power of Attorney agents, but also to other family members and friends.

Living Will

In the event that you are terminally ill and cannot communicate, a Living Will provides instructions for your wishes regarding use of life sustaining procedures (respirators, etc.) and the use of artificial feeding.  You choose the life support treatments you want to be provided or withheld and the length of time you wish to be kept alive by artificial means.  Your healthcare power of attorney agent is required to comply with your living will.

There are several benefits to a Living Will.  You make the difficult decisions about your care while you are healthy and competent so your loved ones are not faced with trying to make those difficult decisions for you.

Legal Document Storage

A few years ago, a study published in the Journal of the American Medical Association found that in 73% of cases where advanced medical directives (healthcare power of attorney, living will, HIPAA authorization) were needed, they were not available to healthcare professionals.  More surprising, this study involved patients admitted to a geriatric hospital.

Your healthcare directives and other legal documents are only effective if your agents and healthcare providers have access to them when needed.  For our clients who are members of our Client Care Program, we offer complimentary enrollment in the Legal Directives Medical Access Program.  This program provides your physician, family members, and other emergency medical personnel access to your medical directives, emergency contacts, and information regarding your allergies and medical conditions when it matters most.   Your documents are securely stored and available globally by fax or online, 24 hours a day, 7 days a week.  You simply carry a card in your wallet or purse, and in the event of an emergency your physician, agents, or medical personnel can follow the instructions on the card and have copies of your documents transmitted to them within minutes of request.