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Estate Planning FAQ’s

Do I have to go to Probate?

The answer to this question will depend on the size of the assets of the estate, whether or not the decedent left a surviving spouse, and the decedent’s estate plan. In order to eliminate probate at the death of the first spouse or family member, it is important to consult an Estate Attorney and structure your estate plan in a way that will allow the heirs to avoid probate.

What is Estate Administration?

Estate administration is the name given to the process of transferring assets to others following someone’s death. Their “estate” represents the sum total of assets that are in the decedent’s name. Whether the probate court will be involved in estate administration is a decision typically made by your attorney, once all the assets and liabilities of the decedent are identified.

What is a Living Will?

A living will is a document in which you express your wishes concerning the use of life-sustaining medical treatment in the event of a terminal illness.  Living wills provide some indication of one’s wishes regarding “pulling the plug” should that decision need to be made by your health care agent.

What is an Appointment of Health Care Representative?

An Appointment of Health Care Representative is a document in which you name a person (the “health care agent”) to make health care decisions for you if you are unable to make or communicate them yourself.  The health care agent has to follow your wishes even if the agent does not agree with them. If your health care agent does not know your preferences, the health care agent must determine what is in your best interest and act accordingly. You can revoke your Appointment of Health Care Representative at any time if you have the capacity to do so.

An Appointment of Health Care Representative is used to avoid the need for conservatorship proceedings in the Probate Court if your doctor decides that you are not able to make medical decisions on your own.  If you do not have an Appointment of Health Care Representative, the Probate Court will appoint a conservator of your person to make those decisions for you.

Unless specifically limited by the document, your health care agent’s authority extends to obtaining medical information and making all medical decisions on your behalf, including decisions regarding the use of life-sustaining medical technology.  Your health care agent must have as much information from you as possible to assist him or her in making those decisions.  For this reason, some people like to sign so-called “Living Wills.”

What is a Durable Power of Attorney?

A power of attorney is a document by which you (the “principal”) authorizes a person (the “attorney-in-fact” or “agent”) to manage your assets and financial affairs during your lifetime.  A power of attorney is “durable” if the agent’s authority continues if you become incompetent.

Powers of attorney are used to avoid the need for conservatorship proceedings in the Probate Court if you become unable to manage your financial affairs yourself. The agent can do whatever the principal may do – withdraw funds from bank accounts, trade stock, pay bills, cash checks, sell real estate – unless the power is limited in a power of attorney.

Typically the agent’s authority to act is either immediate or springing.  An immediate power of attorney gives the agent authority to act which is effective immediately after you sign the document.  A “springing” power of attorney is only valid if or when you become incompetent. Most springing powers of attorney require one or more physicians to certify that you are incompetent.

It is crucial to name someone you trust entirely as your agent.  The durable power of attorney creates a principal-agent relationship, which means that the agent still reports to you, so long as you are competent.  A power of attorney should describe what, if any, power your agent has to make gifts of your property.

How can estate planning attorneys help you plan for serious illness?

Estate planning attorneys will provide comprehensive assistance to individuals and families after a diagnosis of a serious illness. We can assist a person who is sick with creating advanced directives for medical care to express preferences about care in case incapacity makes it impossible to make independent choices about health services in the future. We can also help after diagnosis to make plans for long term care services or hospice care and can guide getting the last will and testament or other estate planning tools prepared.

If you have questions or would like personalized information to you make the best decisions for your estate planning, we can be reached at 860-376- 9993 or online by clicking here.

Do single parents face any specific estate planning issues?

Single parents will face different issues than married parents or people without children as they create their estate plan. When single parents create an estate plan, a determination will need to be made about who should get custody of their children if something were to happen to them, and the other parent is not involved in the child’s life.

They will also need to consider providing financially for their children in case something happens to them. Once children grow, single parents need to determine how to avoid estate tax. When transferring a larger estate to their children, a parent will need to decide if they want their children to make medical choices and/or manage assets on their behalf if the parent becomes incapacitated or if they would prefer to make alternative plans.

Will tax reform change estate planning rules?

Many tax reform proposals that are currently being considered would repeal the federal estate tax. The federal estate tax is currently assessed once the value of an estate exceeds $5.49 million.  If the estate tax is repealed, no one will need to worry about making an estate plan aimed at avoiding federal estate taxes. However, those with estates that are subject to estate tax on the state level will still need to take tax planning issues into account when creating an estate plan.

What is a testamentary trust?

A testamentary trust is a type of trust that you create, which will go into effect after you pass away. It is distinct from living trusts, which you can create and have go into effect during your lifetime.  You can create a testamentary trust within your will, which is why a will trust is another name for a testamentary trust. Testamentary trusts can be relatively easy to develop and can provide you with more control over an inheritance that you provide to someone, such as a minor child who you want to give an inheritance to.

Why would you want to create a revocable living trust?

Creating a revocable living trust as part of your estate plan is a smart option for many people who are planning to protect their assets and to provide for their families. There are many reasons to create a revocable living trust, although this kind of trust is not necessarily the right option for everyone. You may want to create a revocable living trust so you can specify a backup trustee to manage the trust assets so those assets are protected in case something happens to you, and you become incapacitated.

You may also want to create a revocable living trust to facilitate the transfer of assets outside of the probate process. This will allow heirs or beneficiaries to inherit assets much more quickly, which is essential if your loved ones will be depending upon their inheritance or if your assets need to be carefully managed by their new owner instead of being handled by the executor of an estate for months while a probate process drags on.