Estate planning is very technical and depends on the facts and circumstances of each person’s needs, concerns and situation. Do not be misled by advertisements claiming that you can save time and money by drafting your own will or trust using software or a fill in the blank kit. It is highly unlikely that these “kits” will generate a will or trust that will meet your objectives. Only a qualified, licensed lawyer can interpret and sift through all of the laws bearing on property rights, wills, trusts, taxes and probate. The advice and direction of an attorney is essential in developing an estate plan that properly disposes of your assets and meets all of your objectives.
A will is a document in which you identify to whom your property shall be given to after you die. You can leave your property to anyone you choose, in whatever amounts you choose, including leaving everything to your partner. If you have minor children, you can nominate a guardian for your children in the will. Generally, a will is less expensive to prepare than a trust. However, any property passing under the will is subject to a probate process in court, which can be time consuming and costly. A will is a public record which means that anyone can get a copy of your will from the court file.
A probate is the legal process by which property that is owned by someone who has died without a trust in place effects legal title and the transfer of assets to that person’s heirs. Probate is determining who gets what assets when someone passes away by looking at that person’s will, or if there is not a will, by looking to the laws of intestate succession (without a will), which are predetermined laws that determine who the person’s heirs are. Probate is a complex and technical field and requires the assistance of an experienced attorney.
This is a legal document created by you in which you transfer all of your assets to a trustee (which can be you) and which provides for the retention or disposition of your assets after you die. After executing the trust document, you continue to own and have full control of the assets until you die at which point in time the trust assets can remain in trust or be distributed to your partner. You can name your partner as a successor trustee and he or she can be a beneficiary under the trust. A revocable trust avoids the time and expense of a probate proceeding and the content and terms of the trust remain confidential and private.
This document allows you to appoint an attorney-in-fact to act in your name and place with respect to financial and other matters in the event you become incapacitated. You can appoint your partner and he/she can then act in all matters as expressly set forth in the power of attorney.
This document allows you to appoint a person as an agent or attorney-in-fact to make certain health care decisions for you in accordance with your wishes and beliefs when you are no longer capable of making them for yourself.
This document, commonly referred to as a “living will,” allows you to appoint a person, in advance, to act on your behalf only in the event you have a “terminal condition,” are “persistently unconscious” or have an “end stage condition.” The person you appoint will then carry out your predetermined instructions with respect to each of these conditions.
This is a document which allows you to specify one or more persons to be in control of your remains after your death including but not limited funeral arrangements, memorial service, burial and/or cremation. This document allows you to specify wishes regarding such arrangements.