If you’re like most people, you don’t like thinking about your own death or disability. As a result, you postpone making those decisions until it’s too late, leaving your loved ones to deal with the additional expense, frustration, and delay that comes with managing your affairs when you become disabled or pass away. This burden is entirely unnecessary. By being proactive, you can make the inevitable transition as seamless as possible.
Providing for Incapacity
Most people think of estate planning in terms of planning for death. It is just as important, however, to plan for a situation where you no longer have the capacity to manage your own financial affairs. Many people mistakenly assume that their spouse or adult children can simply step into their shoes in the event of incapacity. In fact, without the proper legal documents in place, they will have to initiate a legal action to have the court declare you legally incompetent to manage your own affairs. In addition to the expense and time it will cost up front, it will usually require an annual accounting with the court.
In addition to coming up with a plan to manage your financial affairs, you should also plan for your medical care in the event of your disability. This generally has two components to it: a durable power of attorney for health care and a living will/medical directive. The health care power of attorney allows someone you appoint to make medical decisions on your behalf if you are unable to make decisions for yourself. Similarly, the living will allows you to inform others of the medical treatment you want if you become permanently unconscious.
Another factor to consider when devising an estate plan is the extent to which you want your estate to pass through probate. Probate is the legal process where a court oversees the distribution of the estate to ensure that all of the creditors of the estate are paid and that the remaining assets are correctly distributed. This process is time-consuming, open to the public, and can be costly.
The worst possible scenario is to die without a will. In this case, the laws concerning intestate succession will determine who receives your property. These may or may not reflect your preferences, but will not be modified based on any outside evidence of your preferences to the contrary. In addition, as will be discussed in greater detail in the next section, if you pass away with minor children you will have lost the opportunity to appoint a guardian for your children.
With the proper estate plan in place, usually by establishing a trust (or series of trusts), you can pass on your assets to the beneficiaries of your choosing without undergoing probate in an inexpensive, quick, and private manner. Even in this case, though, you will still want to have a will on hand to take care of any property inadvertently omitted from the trust, and to appoint a guardian for your minor children.
Providing for Minor Children
If you have minor children, they will have a major impact on your estate plan. If they are young, you may want to consider ways to allow your surviving spouse to spend more time with them than working to support them. If your spouse lacks the experience or ability to manage the legal and financial matters that will come up, you may want to consider providing special counseling or other resources for him or her.
In the event you and your spouse die simultaneously or within a short time of each other, you will need to have a plan in place to nominate a guardian for your children. This is one of the most important decisions you can make, since this person will be responsible for raising your children. You will want to make sure that your guardian shares your values, since they will be imparted to your children. You will also need someone to serve as the trustee for your children’s finances. The same person can serve both as guardian and trustee, or you can choose to nominate separate people to establish a system of checks and balances. However you decide to handle this, you will want to avoid creating an additional financial burden on the guardian.
As the children grow older, you will want to put some thought into when and how you want to distribute the remaining estate to them. This can be a question of timing or milestones—by age, need, education, or any other factors you decide and in any combination. A common strategy is to disburse the estate in separate tranches over the years to prevent a person inexperienced in handling larger amounts of money from blowing through it all at once.
Although most people will owe no federal estate taxes under current laws, this is an unsettled area that is subject to considerable political pressure. Regardless of whether tax is due or not, the IRS will want to review your estate to ensure that no federal estate taxes are owed. You can implement strategies to reduce or eliminate these taxes, but you need to start the process early to make the plans effective.
Charitable bequests are often another important component of estate planning. Your estate plan can provide for such donations either during your lifetime or at your death, in ways that will allow you receive income for life while reducing your curent tax burden as well as your potential estate tax liability.
Your estate plan should be a process, not an event. When your circumstances change, your estate plan should be modified as well to ensure that it continues to provide for your loved ones effectively and efficiently. By doing so, you will continue to have peace of mind knowing that you have taken the necessary steps to provide for yourself and your loved ones in case the worst happens.
I would be happy to help you with your estate planning needs. If you have questions regarding your specific situation, please email me at email@example.com or call (703) 574-0425 to schedule a visit.