Estate Planning Law

Estate planning law encompasses wills, trusts, probate, and the different options you have for distributing your assets after death. Hire an estate planning lawyer to help you plan for the future of your estate, including how you want your funds dispersed, how to establish a legal and medical power of attorney, and assigning guardianship for minor children.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 9, 2021

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Overview

  • Estate planning law consists of wills, trusts, and the process through which wills and property are dispensed with after death
  • Some things do not pass through probate, including some trusts — making the establishment of trusts a valuable way to avoid probate and taxes
  • Having the right documents on hand can make a huge difference, both when it comes to determining how your assets are distributed after your death and when determining end-of-life care

An estate plan includes all of the legal documents that outline how a person’s assets will be distributed after their death, including how heirs will handle end-of-life care when and if the person no longer has the ability to make those decisions for themselves.

Your estate includes all the property you own: the money in your bank accounts, your investments, your real estate your personal property, and any other assets you may have invested in throughout your life, including art, businesses, and more.

An estate planning lawyer can go over your estate plan with you and provide legal guidance to ensure that all of your documents adhere to state laws and federal requirements, as well as any of the important details associated with your estate.

Do you need to find an affordable estate planning lawyer to help manage your estate and prepare for the future? Enter your ZIP code above to get in touch with an attorney near you.

What does estate planning cover?

An estate plan helps establish what you want to occur after your death and how you want your assets distributed. It will also include a plan for end-of-life care.

Scroll down to learn more about each element our estate plan may include:

Your Will

Your will lays out how you want to distribute all your assets after your death. You may choose to leave all of your assets to one person, like your spouse; to have them split between multiple parties, as when parents leave their assets to their children; or to leave them to a variety of organizations, individuals, and entities, depending on your specific desires and needs after your death.

A will is a critical element of any estate plan. While it might sound like something that is meant primarily for rich people who have a lot of assets, a will is also a vital asset for people of any income level.

Do I need a will?

Having a will can ensure that your property is distributed according to your desires after your death. It also provides for the care of any minor children, allowing you to choose who takes custody of them following your death. It can also help decrease conflict following your death, as it may prevent your heirs from squabbling over property.

Trusts

A trust can help avoid probate and streamline the transfer of assets to your beneficiaries after your death. A trust gives another party authority to manage your assets for the benefit of others in the future.

What is the difference between a trust and a will?

A revocable living trust is usually created for estate transfer after your death. It can be changed or maintained throughout your life, and you maintain ownership of the property until your death. On your death, the trust passes the property outside of probate, which means that your heirs will not have to worry about expensive estate taxes. It does not, however, name guardianship of minor children.

Trusts are often much harder to contest in court after your death. They become active on signing and will streamline the transfer of your estate after your death. However, a trust can be more expensive to set up than a will and may take considerably more time, which is something you should consider as you set up your estate planning documents.

Legal Power of Attorney

Legal power of attorney establishes a specific individual who can act on your behalf if you do not have the ability to act for yourself. Often included in a living will, legal power of attorney can make vital legal decisions and sign paperwork on your behalf if needed, whether the person named as your agent needs to transfer real estate or enter into financial transactions on your behalf.

In general, legal power of attorney kicks in if you cannot, for any reason, make those decisions for yourself. As long as you are still alive and competent, you can revoke the power of attorney if needed.

You may need to set up a legal power of attorney that allows your spouse to act on your behalf if you cannot do so for yourself. If you do not have a spouse, you may need to choose a trusted friend or family member to take on that responsibility for you. You and your spouse may also want to name an alternative power of attorney who can make those decisions on your behalf if needed.

What should you consider when choosing legal power of attorney?

A legal power of attorney has the ability to act on your behalf in a variety of legal transactions. When you choose a legal power of attorney, there are several key factors you may want to keep in mind:

  • Does the person you’re considering as your legal power of attorney understand how you want things handled on your behalf?
  • Will the person you’re considering make decisions based on your needs, not their own?
  • Is the person you’re considering trustworthy?

As you consider legal power of attorney, you may not want to choose a relative who lives far away or one with whom you often disagree over financial matters to take over your estate.

Medical Power of Attorney

Medical power of attorney establishes another party to make medical decisions on your behalf if you cannot make them for yourself. If doctors discover something unexpected during surgery, your medical power of attorney may step in to make that decision for you. If you need to go on life support, your medical power of attorney will have the right to make that decision on your behalf.

If you do not have a medical power of attorney, your family will have the right to make those decisions on your behalf. Most of the time, doctors will turn first to your spouse, then to adult children, then to parents, if relevant. Assigning a medical power of attorney will ensure that the doctors listen to the party that you want to make those decisions on your behalf.

Is legal power of attorney and medical power of attorney the same?

No.

Legal power of attorney and medical power of attorney are two very different things and may need to be two very different people. Your legal power of attorney will have the right to conduct legal operations on your behalf, while your medical power of attorney will make medical decisions in the event that you are unable to make them for yourself.

Your medical power of attorney will not have access to your bank accounts or to your legal information but will have access to your medical records.

You may want to choose people who have the ability to fill those specific roles, based on their qualifications and ability to make those decisions based on what you would want.

What should I consider when choosing a medical power of attorney?

In choosing a medical power of attorney, there are several key things you may want to keep in mind:

  • Will the person you are considering make those decisions based on what you would want, not based on what they would want?
  • Is the person you’re considering as your medical power of attorney physically close to you?
  • Will the person you have designated as your medical power of attorney be able to carefully consider and live with the repercussions of those decisions, including decisions that may impact your future quality of life?

In some cases, medical decisions need to be made quickly. Keep this in mind as you consider your medical power of attorney as you might prefer having someone who lives nearby.

Guardianship Designations

In addition to the specific terms of your will, if you have minor or disabled adult children who will continue to need care after your death, you may need to assign guardians for those children. Choosing a guardian for your children is a critical decision.

If you have not assigned a guardian for your minor children, the court may assign guardianship for you, and that means a judge who has never met you and does not understand your specific needs for your children’s future will end up deciding who will raise your children in your absence. By clearly designating intended guardianship, usually laid out in your will, you can ensure that your children are provided for.

How should I choose a guardian for my minor children?

Choosing guardian provisions for minor children is an incredibly personal decision. There are several key factors you want to keep in mind as you determine who will be the best guardian for your children and how that guardian will help raise and support your children in your absence.

Consider:

  • Who will do the best job of keeping your children, if you have more than one, together? Some people may not have the capacity to take on several children at once, while others may be in a more ideal position to support those children.
  • Does the person that you’re considering have the means to provide adequate financial support for your children? Are you able to leave financial support behind that will help aid in caring for your children in your absence?
  • Who will raise your children according to the values that are important to you?

If you have children with special needs, different considerations need to be made. Every child has unique needs, but some children may need a family member who can advocate for them and provide them with much-needed support throughout their lives if you cannot be there in the future.

Consult with an experienced estate planning attorney to help make the right decisions regarding the guardianship of your family.

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What does an estate planning lawyer do?

An estate planning lawyer can offer a number of legal services to you as you manage the future of your estate, determine how you want to distribute your assets, and decide who will make the vital decisions for you or your minor children.

An estate planning lawyer can help put together legal documents that will be binding after your death.

Simply putting together a will on your home computer may not be enough, especially if it does not include all the necessary information to distribute your assets after your death. An estate planning lawyer can help ensure that you put that documentation together properly and that it is legally binding, ensuring that your assets are distributed according to your intent after your death.

An estate planning lawyer can help ensure that you have considered all the details of your estate.

Most people do not want to contemplate their deaths, and if you have not yet dealt with the death of a close family member, you may have no idea what needs to go into the estate planning process. An estate planning lawyer can discuss the options for the distribution of assets in your estate and make sure that you have all the necessary documents.

An estate planning lawyer can help decrease the tax burden faced by your heirs.

Estate taxes can prove incredibly expensive, especially if you have a large estate and have not set up a trust before your death. If you want to streamline the process and ensure that your heirs will face fewer taxes, hire an estate planning attorney.

An estate planning lawyer can help set out restrictions that will ensure your final wishes are carried out.

You may want to include specific provisions in your will to ensure that everything gets distributed according to your final wishes. Some people include very interesting or complex provisions in their final will. An attorney can help create those provisions and ensure that you have laid them out legally, with no loopholes heirs could use to avoid them.

An estate planning lawyer can help you think through contingencies that can help you reduce potential disputes.

Unfortunately, disputes are all too common as the deceased’s heirs go through the resolution process. Many families end up fighting over the distribution of assets. When you work with an estate planning attorney, you can plan for many of those contingencies ahead of time and reduce potential battles over your estate.

What questions should you ask before hiring an estate planning attorney?

Choosing the right estate planning attorney is a big decision. Your estate planning attorney will work with you as you create some of the most important legal documents of your life: the ones that will govern what happens after your death.

As such, it’s critical that you choose the right estate planning attorney for your needs. These questions to ask a lawyer will help you select an estate planning attorney who will work well with you.

Is your attorney focused on estate law?

It may be tempting to simply choose the family law attorney you have worked with before. A family lawyer is great at handling a wide range of concerns and topics, including divorce, child custody, or legal disputes between family members.

At the same time, however, family lawyers often do not specialize in estate planning. If you have any complex assets that you need to manage with your estate plan, working with a lawyer who specializes in estate planning can prove critical.

Many general practice attorneys are capable of assisting with very simple estates, but you’d be better served to ask your general practice attorney for a recommendation than relying on them to handle your complex end-of-life needs.

Do you feel comfortable with your estate planning attorney?

You may choose to communicate with more than one lawyer as you shop around for an estate planning lawyer to manage your final will and powers of attorney. Often, you may decide to consult with more than one party to make sure that you’ve chosen the best one for your specific needs. Other times, you may struggle to connect with a lawyer who has time to manage your needs.

Regardless of how many attorneys you talk to, make sure you feel comfortable with the estate planning lawyer you’ve chosen. You’ll be sharing a great deal of private information with that individual: not just information about your assets, which some people struggle to address directly, but information about your family dynamics.

You may need to share facets of your family history with your estate planning attorney, including what members of your family you most trust to help raise your minor children or who you trust to make legal or medical decisions on your behalf.

If you do not feel comfortable with your lawyer, you may be less likely to share that information, and your will and other estate planning documents may not reflect your specific needs as well as you had hoped.

Does your attorney have the time to devote to your case?

Some estates are more complex to manage than others. If you have a relatively small estate and need a simple distribution of your assets, you may be able to use common forms and straightforward solutions for your estate planning. On the other hand, if you have a more complex estate, including the distribution of multiple assets, or you need to create other documents, you may need a lawyer to spend more time working with you.

If you feel as though the lawyer is rushing through your initial consultation or you do not feel heard, you may want to choose a different attorney.

Does your attorney demonstrate a clear understanding of local estate planning laws?

Each state may have unique laws and requirements when it comes to estate planning. When you select an estate planning attorney, you want to know that the attorney has specific knowledge of your state’s laws, including anything that might impact your future estate plans or your heirs as they manage your estate.

Working with an attorney who has a presence in multiple states, for example, could lead to complications down the road. If necessary, ask questions about your attorney’s qualifications and how many clients he has used in the past to ensure that he has the skills and knowledge needed to help you successfully prepare your estate.

Ready to hire an estate planning lawyer? Enter your ZIP code below to find an affordable estate planning law firm near you.

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