Estate Planning Law

Estate planning law determines what happens to assets after death or incapacity. Because having a will and, possibly trusts, can be powerful wealth management tools to control who benefits from your accumulated wealth and property as well as managing the way federal estate taxes affect your heirs, a good estate planning attorney is essential. A good estate plan dictates how your assets are treated after you're gone. Another aspect of planning as you get nearer to the end of life is to have tools in place in case you are incapacitated. A power of attorney and a living will or DNR (do not resuscitate) will make sure your wishes are honored if you are incapacitated while a will and solid estate plan will protect your wishes after your death.

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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: Mar 11, 2021

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Overview

  • Estate planning law is made up of wills, trusts, and documents to control what happens when someone is incapacitated.
  • The process through which wills and property is dispensed with after death is called probate.
  • Some things do not pass through probate, including some trusts — making the establishment of trusts a valuable way to avoid probate.

An estate plan is a series of documents declaring how a person’s assets will be distributed at their death. A person’s estate is all the property they own, which might include real estate, bank accounts, investments, and other assets, plus a property of more personal nature like clothing, furniture, jewelry, or other household items.

Having an estate plan allows a person to determine ahead of time how their assets will be distributed at their death. However, a thorough estate plan can also provide instructions in the case of a person’s mental incapacitation, using financial powers of attorney and advance directives like durable powers of attorney for healthcare and living wills.

In addition, a good estate plan can minimize federal estate taxes imposed on an estate in order to leave as much as possible to beneficiaries. It is also beneficial during the estate planning process to address the growth, preservation, and availability of assets during a person’s life.

Of course, in order to ensure that you have the best protection in place for your assets and for the interests of your beneficiaries, you’ll need to find an experienced estate planner. You can search for an estate planning attorney with our FREE tool right now.

Types of Estate Plans

There are two basic types of estate plans: will-based and trust-based plans; a well-thought-out estate plan often consists of both. Smaller, less complex estates will generally require simpler plans.

The Use of a Will in an Estate Plan

will is a document that gives clear instructions to a personal representative, or executor, about how to distribute assets when a person dies. A will is created during life but takes effect upon the death of the person who created it, known as the testator.

At the testator’s death, the will goes through probate. This means it enters into a process wherein a court determines whether the will is valid by reviewing the document and confirming that the testator followed all legal formalities. If the court is satisfied that the will is what it purports to be, an executor distributes the estate to beneficiaries and addresses the payment of debts owed by the estate, among other pre-determined administrative tasks.

There are a number of benefits to establishing a will in addition to a trust. One reason is that a will allows the testator to designate a guardian for minor children. Further, while a person must consciously move assets into a trust, a properly-worded will addresses any property the testator may own at death that was not contemplated when the will was created. A will may also be beneficial when an estate is small enough to qualify for a simplified probate process, which is available in some states under certain circumstances and is generally less costly and quicker than regular probate.

Trusts in Estate Planning

trust, like a will, is an instrument used to distribute a person’s property according to their wishes. A trust works by transferring property into the care and management of a trustee, who can be either a person or an institution. The assets or income derived from the assets of the trust are then passed on to the trust’s beneficiaries, according to the instructions of the creator of the trust.

Although there are many different types of trust with many different purposes, there are two main categories of estate planning trusts: living trusts and testamentary trusts. Trusts may also be revocable or irrevocable. Revocable living trusts are popular as a way to avoid probate because property in a trust at the settlor’s death is not part of the deceased’s estate and therefore is not subject to probate. Instead, the successor trustee, who is generally named in the trust instrument, may take immediate control of the trust and begin distribution of the trust property according to the wishes of the settlor.

The successor trustee is called the successor because in a revocable living trust, the settlor is usually the trustee until the settlor’s death. A revocable living trust allows the settlor to retain control of the assets in the trust and to change, add, or revoke the trust at will. Sometimes when a revocable living trust is used, a pour-over will is added, which provides that all assets remaining in the estate on the death of the testator are transferred to the trust.

Testamentary trusts transfer property into a trust upon the death of the settlor through a will that provides for such a transfer. Since the trust wasn’t created until the settlor’s death, the property is still subject to probate, but a testamentary trust may serve many other useful purposes. For instance, a trust can be used to control how and when a beneficiary will receive funds. This is often a strategy to protect property in the trust from a beneficiary’s creditors, while still providing for the support and care of the beneficiary. This can also provide a means to support one beneficiary until death with the income from the trust, while preserving the trust assets for another beneficiary. These are just a few of the ways a trust can be utilized in estate planning.

Living Wills and Power of Attorney

Including a plan for incapacitation or inability to care for oneself when drafting an estate plan is a common and wise measure. There are several types of documents that are used for this purpose. A financial power of attorney, sometimes called a durable power of attorney for finances, designates a person called the agent who will control an incapacitated person’s finances on their behalf.

Another common planning tool is an advance health care directive, which is a document that deals with medical plans and decisions. Advance directives should include a durable power of attorney for healthcare, which gives another person called a proxy or health care agent the power to make medical decisions in the event a person is unable to do so themselves.

A living will, another type of advance directive provides medical instructions in the case a party is incapable of making their wishes known. Some individuals also choose to include a DNR or Do Not Resuscitate order, which is a request that healthcare personnel do not attempt CPR in the event a person’s heart stops or if they stop breathing.

Living wills and power of attorney orders are among the many estate planning tools that can offer peace-of-mind to loved ones during difficult times, and allow a person to have control over the complex matters of planning for the future.

Learn More About Estate Plans

You can use the articles and forums on FreeAdvice.com to learn more about trusts, wills, and probate. The best advice for your specific situation and unique needs, however, is going to come from your attorney. If you need to find an estates attorney near you, enter your ZIP code into our search tool to get started right now.

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