Typical Estate Planning Documents

Last Will and Testament
Advantages of a Will
Powers of Attorney
Living Will
Trust Agreements
Living Revocable Trusts
Advantages of a Living Trust
Marital Property Agreements

Last Will and Testament

A will is an integral part of every estate plan, but it is important to remember that a will only governs your probate assets and will not determine who receives property that passes by beneficiary designation, contract, or operation of law. Even estate plans designed to avoid probate by using living trusts should also include a will in order to pass any property that has not, for whatever reason, been transferred to the trust during lifetime.

Advantages of a Will

Avoids distribution under the laws of intestacy

Most people would prefer to choose who would receive their property when they die rather than leave that decision to the State under the laws of intestacy.

Nominates a guardian for minor children

The Court almost always appoints relatives as guardian, but relatives are not always the best choice and consideration must be given to the financial situation of the potential guardian as well as his or her health, age, willingness and ability to care for your children.

Waives the probate bond

Unless directed otherwise by a will, the Court will require a fiduciary bond to be posted by your personal representative, and this cost will be borne by your estate.

Names your Personal Representative

Because the duties and responsibilities of administering your estate can be time consuming and complicated, a qualified individual and/or corporate trust company should be chosen.

Permits specific bequests to individuals

Specific bequests of jewelry, heirlooms, cash, or other property may be made in a will. If you do not have a will, your property will simply be distributed pursuant to the intestacy laws.

Can expand the powers and reduce liability of your personal representative

Under a will, you can expressly permit your personal representative to take certain actions that would not otherwise be allowed absent the cost and delay of court approval, and you can reduce or eliminate the potential liability for taking such actions.

Tax Savings

Substantial tax savings are possible through the use of testamentary trusts established in your will.

Peace of mind

Although not measurable in dollars, peace of mind is a valuable benefit for anyone concerned with his or her family’s well being.

Powers of Attorney

Powers of Attorney for financial and health care purposes name the person who may make decisions for you in the event you are incapacitated. This avoids delays in asset management as well as the cost and potential embarrassment of a court proceeding.

Living Will

A Living Will sets forth the type and extent of life support measures to be taken in the event you cannot make these decisions, and saves family members from having to make difficult and often painful decisions during a time of stress.

Trust Agreements

A Trust may be created during life (an intervivos trust) or by your will (a testamentary trust) to manage your property, manage assets for minor or incompetent beneficiaries, or provide for the needs of a second spouse during his/her lifetime with assets passing to the children of a first marriage upon the second spouse’s death.

Living Revocable Trusts

A Living Trust (also known as a revocable trust) is a trust created during your lifetime to manage your property during lifetime and to pass it to designated beneficiaries upon your death without formal probate proceedings. A Living Trust does not, in and of itself, save taxes, but it can be drafted in a manner that minimizes taxes (as can a Will).

Advantages of a Living Trust

Ownership/Control
You, as trustee, continue to own and control your assets for as long as you are living and competent.

Revocable
A Living Trust is easily amended or terminated.

Smooth Transition
Your successor trustee steps in upon your death or incapacitation without the need for court intervention or potential publicity.

Avoids Probate
Assets transferred to the Trust during lifetime will avoid probate. This is especially beneficial for out-of-state real estate which could otherwise result in a probate proceeding in that state as well as in the state of residency. Any assets not transferred to the Trust during life will be probate assets and will pass according to the terms of your Will.

Avoids Court Accountings
Annual court accountings along with accompanying legal fees are not required for living or revocable trusts, but are required for testamentary trusts.

Marital Property Agreements

A Marital Property Agreement classifies property as marital or individual and should be a part of most estate plans for married couples (especially in second marriage situations where there are children from the first marriage) to avoid unintended dispositions resulting from the unanticipated classification of property. You should discuss this issue with your attorney as a part of your estate planning.