ESTATE PLANNING ATTORNEYS

Wills and trusts are essential and commonly used in the estate planning process. However, they are not the same. A will affects the distribution of assets after your passing along with other decisions, including guardianship of minors. Additionally, a will can instruct the executor to create a trust. This typically occurs so assets are held until the benefactor reaches a specific age. Once finalized and signed, it is filed with your jurisdiction’s probate court.

A trust also affects the distribution of your assets but can be used while you are alive. A trustee manages the trust administration. They are fiduciary required to follow the terms outlined in the trust and make financial decisions in the beneficiary’s or beneficiaries’ best interest. You can create a living trust, executed during your lifetime, or a testamentary trust, created post humorously. Additionally, there are charitable and special needs trusts.

The role of a guardian is the day-to-day caring for a minor child, elderly or vulnerable parents/adults, or adult with a disability/disabilities. They decide on living situations, nursing home placement, and healthcare decisions. Guardianship decisions occur if you become incapacitated and can no longer fully care for them.

The conservator manages the finances for the minor child until they come of age, the elderly or vulnerable parents/adults, or an adult with a disability/disabilities. They pay day-to-day or medical bills, manage financial accounts, pay debts, and handle government benefits.

The same person can be a guardian and conservator. However, often they are two different people.

If you become incapacitated or lose your mental functions, your power of attorney/durable power of attorney makes financial decisions on your behalf in either temporary or permanent situations. Mental incapacity includes conditions such as senility, Alzheimer’s, or schizophrenia. A power of attorney can have complete authority, or you can limit their decision-making abilities.

Your living will tells family members what type of medical care you want or do not want to receive if you become incapacitated and can not speak for yourself. This includes the use of feeding tubes, pain management, or procedures.

Advance directives and living wills are similar, but advance directives include more health care directives for the medical staff and your family. This includes do not resuscitate orders (DNR), organ donation, and/or medical power of attorney. Some states use the terms living will and advance directives interchangeably.

A medical power of attorney (POA) specifies who can make medical decisions on your behalf, including end-of-life. Your medical POA can handle non-end-of-life decisions, such as a complication during surgery. They can also handle your end-of-life decisions.

Regardless if you have a will or not, your estate will go into probate. Probate is the general administration of your will. The executor will complete the probate process by filing the will with the probate court, collecting the assets, paying any debt or liabilities, and distributing the assets per the will’s directives.

If there is no will, the estate becomes an intestate estate, and the assets will be distributed according to state laws.

An estate planning attorney or probate attorney helps individuals who need assistance with probate or the administration of an estate. They also help individuals who wish to assist estate administrators, executors, or beneficiaries who want to transfer or sell estate properties.

The estate executor manages your estate administration. They will distribute your assets per your will. After they have paid administrative expenses and settled all debts, any leftover assets will be distributed with your state’s intestacy laws. Your will can also have a revocable trust created for any leftover assets. Those assets will transfer over to the trustee or trustees.

If you have not created a will or trust, your property will enter the probate process as an intestate estate. There, the courts decide on the beneficiaries of your estate. The beneficiaries include your spouse, child(ren), parents, and siblings. Your state has a beneficiaries hierarchy if there are no surviving parents or siblings.

Unfortunately, your trust or estate may owe taxes or taxes may need to be filed after your passing. These include federal estate taxes, state estate taxes, state inheritance taxes, federal gift taxes, generation-skipping transfer taxes, and/or income taxes. Not all taxes apply in all states or to all trusts or estates.

An estate attorney can assist you through estate tax minimization strategies and other techniques, including estate and gift planning.