A will is a statement by an individual, usually written and signed, directing the distribution of his/her property after he/she is deceased. Wills have to be probated by the court which delays the distribution of the property. The probate process can also be expensive which lessens the beneficiary's inheritance.
A trust is a written document that creates a legal obligation with respect to property given by an individual (trustor) to either that individual or a third person (trustee) for the benefit of a beneficiary. The trust is valid only when funded, meaning the property's title is transferred from donor to the trustee as trustee of "Family's Trust". The trust is administered outside of the court and in instances where the beneficiary is the trustee, the administration of the trust can be less costly than going through probate. There are various trusts which serve different purposes. The most commonly used is the living or revocable trust. Individuals are mainly drawn to the revocable trust because the donor/trustee gets to retain control of his/her assets during his/her lifetime while making arrangements to appoint a successor trustee at his/her demise.
Estate planning is not only for wealthy families with "large" estates. Even individuals or families with modest estates can benefit from estate planning. By getting an estate plan, a person can save on estate taxes, income tax on the disposition of property and avoid probate. Every estate plan should include a financial durable power of attorney and an advanced health care directive.
Estate tax planning is increasingly becoming a more important facet of estate planning. The attorney undertaking estate tax planning works with the estate tax provisions of the IRS Code when formulating the appropriate estate plan with a particular focus on reducing or even eliminating the payment of estate taxes.
Non- Probate Planning
Non-probate assets are assets that pass outside of probate. Examples of such assets are life insurance policies, pension benefits, joint tenancy property, and bank, brokerage and mutual accounts with beneficiary designations. The commonality between all these assets is the ability of the owner to have beneficiary designations or co-owners, allowing the property to go directly to the designated beneficiary or co-owner without the approval or administration of the court. Such assets are considered will substitutes because they allow a property owner to distribute his property pre-demise without having a will. It is still advisable that individuals with mostly non-probate assets consider additional estate planning to account for any assets that must be probated.
Powers of Attorneys and Advance Health Care Directives
These are documents that allow individuals to plan for their incapacity by naming agents to make necessary financial, personal and health care decisions. These documents also allow individuals to specify desires for future care when they can no longer do so because of their own incapacity. The most common type of financial power of attorney in estate planning is one that is both durable and immediately effective. A durable power of attorney continues to be operative even after a person becomes incapacitated. A springing power of attorney does not become effective immediately on execution but at a specified future time or occurrence of a future event or future contingency. So a durable springing power of attorney is one that becomes effective in the future and is operative even after incapacity.
An advanced health care directive, as its name suggests, outlines the medical decisions an individual wants made in the event of incapacity. An advanced health care directive is presented to the doctors and nurses in health care situations as a definitive expression on how the medical care of that individual should be approached. Advanced health care directives are given deference by health care officials and the court when disputes arise pertaining to the medical care of an incapacitated individual. An advanced health care directive usually names a proxy or agent to represent his/her wishes as stated in the document.
For both the durable power of attorney and the advanced health care directive, the client should think carefully about who he/she appoints as agent. This is because the agent is usually given the authority to act as if he were the principal, (person giving the power in the power of attorney or advanced health care directive), in situations where the principal is unavailable or can no longer act for himself. For example, the agent will be empowered to make the decision of whether the patient's nourishment should be discontinued if the principal is unable to make that decision, according to the instructions laid out in the advanced health care directive.
Probate is a court process during which a duly executed will is submitted to the court for administration. An executor is appointed to administer the testator's estate according to the provisions of the will. The executor must get court approval before taking certain actions and must also provide an accounting to the court before the estate can be closed and executor relieved from duty. Because of the court's involvement, probate can be a lengthy and expensive process. It is beneficial because it creates a system of accountability for the executor and provides protection for the beneficiary against mishandling or negligence by the executor.
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