The answer the question is: Probably Not
However, the question is artfully crafted to lead to the follow statement:
That’s the wrong question!
It is the wrong question because Estate Planning is not a ‘document’ or ‘form’ of even a single event. Estate Planning is the endeavor to provide a PLAN that answers the various questions under the general theme of ‘what happens to my assets when I die –or, and it’s a big “OR”- at the time that I become incapacitated. And, hopefully, at this early stage in this article it is apparent that the PLANNING is not a single document or form, but rather a dialog that leads to an understanding, which in turn will lead to documents.
The remainder of this Article will discuss the correct questions and the possible documents that will provide the solutions.
Who controls your assets if your are alive, but unable to competently manage your affairs?
(ie through illness or injury, you are incompetent) It is costly and uncomfortable. You should plan to avoid it. You can designate someone to manage your affairs by Power of Attorney. They come in two forms, one for your Property, and one for your Health Care. In most estate plans, you will have a Power of Attorney for Property and a Power of Attorney for Health Care. If you create a Trust, then the Trust will have a second Trustee who will manage the assets in the trust if you are incapacitated.
What controls the passage of assets when I die?
(Spoiler alert: it may not be a Will) Assets transition at death based upon the way that they are set up:
- Jointly owned assets go to the surviving owners. They do not pass by Wiill
- Assets with beneficiary designations go to the beneficiaries, The most common is Life Insurance. But beneficiaries are also named for most IRA’s and 401(k) and similar plans. Those Assets do not pass by a Will.
- Some assets have specific “Payable on Death” designations. They do not pass by Will,
- Assets held in Trust pass as written in the Trust document. They do not pass by Will, either.
The only assets that pass by Will are assets that are ‘stuck’ in the name of the person who dies. Much of estate planning involves setting up assets so that they are not ‘stuck’ in just one name. The plan involves an asset-by-asset review of how the assets are set up, and to provide for some pathway for passage at death so that the asset is not ‘stuck’ in the name of the one person who has died.
Finally, the use of a Will usually requires Probate. Most estate plans avoid probate by eliminating assets that are ‘stuck’.
Experienced and competent estate planning attorneys can provide guidance as to how your assets are currently set up and suggest simple changes that can be made to provide a plan to provide certainty upon incapacity or death. It may not be as complicated as you think.
Call Mid-America Law Practice, LLC at 314-818-8807 for a free consultation to see how we can help you craft your unique estate plan.
The choice of a lawyer is an important decision and should not be based solely on advertisements.