Frequently Asked Estate
What is Estate Planning? "I just need a Simple
Estate Planning is a lifelong process. It is
not simply the drafting of a Will, Trust or any series of
documents. The purpose of estate planning is to assist in the
accumulation, management, conservation, and disposition of your
assets. Therefore, Estate Planning may also be
better called Asset Planning.
The goal of the estate planning
process is providing you and your loved ones with the
maximum benefit during your lifetime and after your death. Issues
typically addressed include:
- saving or reducing taxes,
- avoiding probate or reducing its cost,
- providing for incapacity,
- protecting your assets from
- assuring that your assets are given to
whom you desire,
- empowering your loved ones to control your
If you own a business, business
planning and estate planning must be
our Estate Planning Questionnaire
What is a will?
A will is a written document, following the
formalities of law, that disposes of your estate at your death. Some
of the advantages of a will are:
- you direct the distribution of your
property at your death, rather than the state of your
residence directing the distribution through probate and the
- by naming your executor or executrix, your
loved ones, partners, and spouses can be given the control of
your estate rather than others (such as undesired family members)
by the laws of the state of death,
- you can set up a trust
instrument to provide income and principal for the benefit of your
family or others after your death,
- eliminating some of the fighting over your
estate that can involve courts and unnecessary legal fees.
- you can name the guardian of your minor
What happens if I do not have a will when I die?
If you die without a will, the laws of
the state of your last domicile determine who gets your estate
through the laws of intestacy. Typically, the estate would be given
to children and a spouse, but not necessarily to whom you want.
Further, you will not be able to control the disposition by use
of a testamentary trust.
What is a Testamentary Trust?
A Testamentary (versus
"living") trust can be part of your will. Unlike
a Living Trust which takes effect upon execution, a
Testamentary Trust only becomes effective at your death.
Such trusts frequently are designed to extend the time for
controlling assets given to minor children or grandchildren
beyond the age of majority (18 in most states.) They can also be
used to protect the disabled and elderly. Sometimes,
Testamentary Trusts can be used as part of a tax savings plan.
What is a Living Trust?
A Living Trust, legal known as an
intervivos trust is effective during your lifetime.
Typically, your trustee manages your assets for your
benefit during your lifetime, as well as direct the distribution of
assets upon your death. Testamentary Trusts are
frequently used to provide continuing management of your
assets in case you become incapacitated. There may also be
substantial tax savings.
What is a Durable Power of Attorney?
A Power of Attorney gives legal
authority to a person to act as your agent, or attorney-in-fact
during your life and while you are competent. A Durable Power of
Attorney continues after you become incapacitated. Typically,
your attorney-in-fact have authority over bank accounts,
investments, and may have the right to sell your property. Because
the Durable Power of Attorney is not affected by
your incapacity, this may avoid the need for a court appointed
guardian. Without a Durable Power of Attorney, your
spouse, partner, closest relatives, or companion will have
to undergo the expensive and time-consuming task of
petitioning a court for a guardianship over your financial
affairs if you become incapacitated.
What is Guardianship?
A Guardianship is where a person is
appointed by a court to take control of the assets of an
incapacitated person Usually, a well-designed Estate Plan,
with a Will, Durable Power of Attorney and Living Trust avoids the
need for a court-appointed guardian.
8. What is a Living Will and Medical Decision Power of
A Living Will, also called a Healthcare
Directive, states your wishes about withholding or providing
extended medical treatment when you are unable to communicate your
wishes. A Medical Decision Power of Attorney appoints an individual
to make your healthcare decisions should you become
incapacitated. The Living Will can express your desires,
whether to instruct healthcare providers to withhold life-prolonging treatments or even to
reinforce the desire to receive all medical treatment that is