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Julie Garber

Do You Have an Estate Plan?

By February 18, 2013

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When I meet with a new client, one of the first things we discuss is if the client already has an estate plan. Sometimes I get a blank stare because the client simply doesn't understand what I mean by this question. This doesn't necessarily mean that the client lacks a will or even a revocable living trust, but what it does indicate is that if the client already has an "estate plan," they have either forgotten what they have and why they have it because the plan was done many years ago, or they were simply not educated about what documents they have and why they need them. Aside from this, estate planning is certainly not "one size fits all," so while you may need a will and a trust, your neighbor may only need a will.

Below is a list of the common documents included in a basic estate plan. Which ones you will need will depend on your own personal and financial situations:

  1. Last Will and Testament - This estate planning document dictates who gets what after you die and who will be in charge of settling your final affairs. If you're single or married, have children, or own any property, you should have a will.

  2. Revocable Living Trust - This estate planning document covers three phases of your life with regard to property that you transfer into the trust: What happens to the trust property (1) while you're alive and well, (2) while you're alive but not so well, and (3) after you die. Revocable living trusts are used to put a plan in place in case you become mentally incapacitated, keep your final wishes private, and avoid probate. Whether or not you need a revocable living trust as part of your estate plan will depend on many factors.

  3. Advance Medical Directive - This estate planning document allows you to name someone to make health care decisions for you if for any reason you are not able to do so for yourself. Remember Terri Schiavo, who was only 26 years old when she slipped into a coma? Everyone of legal age should have an advance medical directive.

  4. Living Will - This estate planning document allows you to indicate what type of medical treatment you want, or do not want, to receive if you are in a terminal condition and not expected to recover. Again, remember Terri Schiavo, who was only 26 years old when she slipped into a coma? Everyone of legal age should have a living will.

  5. Power of Attorney - This document allows you to name someone to take care of your finances and certain personal matters. In most states you can choose if you want your power of attorney to go into effect immediately or only after you have been declared incapacitated. Everyone of legal age who has a bank account should have a power of attorney.
February 25, 2013 at 9:11 pm
(1) dcdoc says:

Would an Advanced Medical Directive give one’s spouse any additional power as far as making health care decisions on your behalf than they would have without it? For a spouse is it just “back-up” in effect?

Is a Living Will legally binding on anyone or is it just an expression of one’s wishes under different sets of circumstances? If Terri Schiavo had executed one, it might have cut short the protracted and nasty fight with her parents over whether to keep her alive, but if someone stated their wishes to be kept alive or not with artificial nutrition and hydration under those circumstances, no one would be legally compelled to follow those wishes, would they? (Also, not sure about “terminal condition,” since life is always a “terminal condition” and one could survive for a very long time, as Schiavo did, though with no expectation of recovery.)

These documents, especially the POA and AMD, serve not only the interests of the individual, but they can avoid delays, enormous costs, aggravations, legal hassles, etc. for those who would act on the individual’s behalf in case of their incapacitation, absence, or death. Try attending to the needs of a demented parent without an AMD and POA and you will come to appreciate the value of having them. Those are really DO NOT WAIT documents to get drafted and executed. And some states have standard forms for them, don’t they?

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