Estate Documents That Everyone Should Have

Posted on Thursday, March 17th, 2011

by Amy F. Merrill, CFP®, Principal, Windham Brannon Financial Group, Inc.

I read an article in Forbes last week that read that 50% of Americans do not have basic estate planning documents, according to a national telephone survey of 1,022 adults conducted in December 2009 by Harris Interactive.  Interestingly, most couples might think if they die without a Will, the surviving spouse inherits everything…this is only true in 16 states.  Also, if you are disabled and unable to make financial or health decisions, your family will have to petition the court to appoint someone with that power…this could be costly and cumbersome.

The Basic Documents

Unless you want your state’s government to decide how to distribute the assets in your estate or who should make important decisions if you are disabled, you should have the following basic documents:

  • Last Will and Testament – a document that disposes of your property after you die. Your Will is a multi-functional document that determines who is entrusted to carry out your wishes after your die (Executor/Personal Representative), names your beneficiaries and how they receive the property (directly or in trust), names the guardians of minor children (if applicable), and names trustees if beneficiaries receive property over time through a trust.
  • Power of Attorney – a document that allows someone to step into your shoes to make financial decisions –as basic as paying your bills to as complex as selling assets or making gifts.  Because this document is durable, the power of attorney will continue in the event of your incapacity or inability to make personal decisions.  The document can require that doctors deem you incompetent before it becomes effective (called Springing), but that is not necessary.
  • Healthcare Directives – a document similar to a Durable Power of Attorney, but for health care decisions.  You can select a health care agent to make health decisions for you.  Some states offer standardized forms outlining specific situations that you can address to help your agent make decisions in line with your treatment preferences.

Choosing an Attorney

In drafting your estate documents, it is important to choose an attorney that specializes in the area of  estate planning.  The laws and regulations are ever-changing and you will want to have properly drafted documents to take advantage of any strategies that are available to benefit your family’s specific needs now and in the future.  Provide the attorney with a basic personal financial statement so he/she can understand who owns which assets and can make recommendations accordingly.

 

Storing the Documents

After you have signed your documents, what should you do with them?

  • Last Will and Testament – some estate attorneys prefer to keep originals, but if you have the originals, keep them in a fire-safe vault at your home or in your safety deposit box.  Tell your loved ones where your Will is located in the event they need to find it.  Make copies of your Will – for your financial advisor, for your Executor, and your personal records.  Put a note with the copy of your Will, telling your loved ones where the original is located – originals are needed for the probate court.
  • Durable Power of Attorney – have multiple copies available and keep with your personal records.  Provide a copy to your financial advisor to keep in his/her file.
  • Healthcare Directives – have multiple copies available and keep with your personal records.  Provide a copy to all of your physicians, your agents, and to your financial advisor to keep in their files.

Reviewing Documents

Remember, don’t just put the estate documents in a file and forget them.  As your net worth changes, your family changes (marriage, divorce, births and deaths), and as estate tax legislation changes, you should review your estate documents to ensure that your wishes are still being met with your existing documents.

Advanced Topics

Of course, the higher your net worth, the more complicated and tax-driven your estate planning could become.  There are more advanced topics that are not covered in this basic summary such as owning real estate located, outside of the state in which you live, inside a Revocable Trust to avoid extra probate; including Credit Shelter Trusts (or Bypass Trusts) in your Will in order to minimize estate tax at the death of the 2nd spouse; including Marital Trusts (especially in the situation of 2nd marriages) that outline the disposition of your assets at the death of the surviving spouse; using certain trust language within your Will to minimize the tax of your estate in future generations (Generation Skipping Tax).

These advanced topics can be discussed with your financial advisor, your estate attorney and your CPA to maximize that which is transferred to your heirs and minimize the complexity and the tax associated with the transfer.

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Amy F. Merrill is a Certified Financial Planner® with extensive experience working with corporate executives and wealthy families. She is a Principal with Windham Brannon Financial Group. She can be reached at amerrill@wbfinancial.com or 678-510-2720.

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