While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.
Proper estate planning not only puts you in charge of your finances, but it can also spare your loved ones of the expense, delay, and frustration associated with managing your affairs when you pass away or become disabled.
If you become incapacitated, you will not be able to manage your own financial affairs. Many people mistakenly think a simple will can effectively protect you in the event you become incapacitated, but a will does not take effect until you die. If you were to become incapacitated, your spouse or adult children cannot automatically take over. The truth is, in order for others to manage your finances, they must petition a court to declare you legally incapable of handling your own affairs. This process can be lengthy, costly and stressful. Even if the court appoints the person you would have chosen, the individual may have to come back to the court every year and show how he or she is spending and investing each and every penny.
If you want your family to be able to take over for you immediately, it is essential you work with an attorney to create the proper legal documents to designate a person or persons you trust to have authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, run your business, and refinance your home.
In addition to planning for the financial aspect of your affairs during incapacity, it is critical that you establish a plan for your medical care. The law allows you to appoint someone you trust – for example, a family member or close friend – to make medical treatment decisions on your behalf in the event you become incapacitated. You can do this by using a durable power of attorney for health care in which you designate a person to make such decisions on your behalf. Alternatively, you may choose a living will that informs others of your preferred medical treatments such as the use of extraordinary measures in the event you become permanently unconscious or terminally ill.
If you leave your estate to loved ones using a will, everything you own will pass through probate. The process can be expensive and time-consuming, and is open to the public. The probate court is in control of the process until the estate has been settled and distributed. If you are married and have children, you should make certain your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. With proper planning, your assets can pass on to your loved ones without undergoing probate in a manner that is quick, inexpensive and private.
It is important your estate plan address issues regarding the upbringing of your children. If your children are young, you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children, without the burden of work obligations. You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters. You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time. A contingency plan should include a list of persons you’d like to manage your assets and name a guardian you’d like to nominate to raise your children in your absence. The person, or trustee, in charge of the finances need not be the same person as the guardian. In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances.
You should give careful thought to your choice of guardian, ensuring he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary. If you fail to plan, the decision as to who will manage your finances and raise your children will be left to a court of law.
Another issue to consider during the planning process is whether you’d like your beneficiaries to receive your assets directly or have the assets placed in trust and distributed subject to conditions and circumstances such as age, need and even incentives based on behavior and education. All too often, children receive substantial assets before they are mature enough to handle them in a prudent manner.
The IRS may want to review your estate at death to ensure you do not owe them that one final tax: the federal estate tax. Whether there will be any tax owed depends on the size of your estate and how your estate plan is structured. Many states have their own separate estate and inheritance taxes, as well. There are many effective strategies that can be implemented to reduce or eliminate death taxes, but you must start the planning process early in order to properly implement these strategies.
Do you want to benefit a charitable organization or cause? Your estate plan can provide support for such organizations in a variety of ways, either during your lifetime or at your death. Depending on how your planned giving is set up, it may also allow you to receive a stream of income for life, earn higher investment yield, or reduce your capital gains or estate taxes.
A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding guardianship during your lifetime, probate at death, estate taxes and unnecessary delays. You should consult a qualified estate planning attorney to review your family and financial situation, your goals and explain the various options available to you. Once your estate plan is in place, you will have peace of mind knowing you have provided for yourself and your family.