Many clients come to us after they have previously prepared an estate plan, perhaps only a few years ago, and perhaps so many years ago that you had named guardians for your now grown children in a last will and testament. In either case, a review and update may be in order!
Estate Planning is actually a lifelong process, which should change with your changing circumstances, changing feelings about the important people in your life, and updated with changes in the law. As you gain wealth, which would include property, businesses, investments, etc., asset protection should be a part of your plan. If you have an estate plan that has not been reviewed by an attorney specializing in estate planning for MORE THAN TWO YEARS – it is at least time for a review, and perhaps an update.
These documents should be, at minimum, included in the estate plans of every person, over the age of eighteen (yes, that is not a typo, I don’t mean eighty). Health Care Surrogate Designation – legal document naming another individual to act for you with regard to health care and health care decisions if you are not able to do this for yourself. If your documents were signed prior to 2011, an update is in order because of some changes in the law that took place in 2011.
Durable Power of Attorney – legal document naming another individual to act for you with regard to financial transactions, business, and all other matters, if you are not able to do this for yourself. If your documents were signed prior to 2011, an update is in order because of some changes in the law that took
place in 2011.
Living Will – legal document (which should be kept private until needed) allows you to state your wishes regarding end of life matters. Last Will and Testament – legal document that states whom is in charge of your “probate estate” and to whom you wish to leave your assets after you pass away.
Designation of Pre-Need Guardian – for minor child or for any adult – legal document that allows you to name who would be the legal guardian of your child or yourself, in the event that a legal guardian is needed.
If any of these documents are not included in your Estate Planning package, you should see a qualified attorney immediately and add these to your plan. In addition, these are documents that may need to be included under certain circumstances:
Revocable Living Trust – legal document that creates a separate “entity” that owns your assets, or is the beneficiary of certain assets. This is beneficial to avoid probate, protect assets, and create more complex succession plans for asset ownership. If you own real estate, have assets of any significance, or
have more complex personal circumstances, such as having a special needs child, a second marriage, own a business, own property in another state, you should discuss a living trust with a qualified attorney.
Limited Liability Company – legal entity that is used to own a business, own real estate, or to protect other assets owned. A limited liability company gives another layer of asset protection and is almost always appropriate for those who own property or who own an unincorporated business.
There are numerous other mechanisms that can be a part of an appropriate estate plan. Each estate plan is unique, and there is no “one-size fits all” plan. Your plan should be reviewed often, and changed any time appropriate. Changes involve having new documents drawn up and signed, before a notary and two witnesses, and not by marking up your old originals. Examples of when changes should be considered are:
- Your spouse has died
- You wish to change beneficiaries
- You don’t want the same person to be your health care surrogate
- You have had a falling out with any person who is named in any of your documents either as a beneficiary, or as a power of attorney, agent, personal representative or trustee
- One of your beneficiaries becomes a “special needs” person (and they were not when you created the plan)
- You started a business, or you sold a business
- You purchased a new parcel of real property
- You received a financial windfall, or you are holding the winning Powerball or other large payout lottery ticket
- Your child has passed away
- You are about to marry or re-marry
- You are about to finalize a divorce
- You have a terminal illness
- Any other major life change
These are just a few examples of when it is appropriate to consider a change to your estate planning documents. Remember, preparing estate planning documents of any kind is not a do-it-yourself project. Please do not download documents from the internet and fill them in. In most cases, they will not be
correct, and will not give you the protection you need.
Chechele Law is available to assist clients with any type of estate planning project. We help clients at all wealth levels and in all circumstances to create, maintain, update and implement their appropriate estate plan!
Trusts, Taxes & Other Tips by Samantha Chechele, MBA