The objective of Estate Planning is the orderly distribution of inherited assets. It is accomplished with a variety of documents briefly described below.
Last Will and Testament
A person's Last Will and Testament is a distribution document. It transfers the person's (Testator or Testatrix) personal effects, personal property such as bank accounts, and real property such as a residence, rental property, and vacant land titled in the sole name of the person. It requires the opening of an estate with the local Probate Court in the county in which the individual resided at the time of death. If minor children are involved, the Last Will and Testament names a Guardian(s), subject to Probate Court approval.
Revocable Self-Trusteed Trust
This estate planning document distributes a person's property. However, it is not subject to Probate Court approval unless there is a contested matter. Assets are titled in the name of the person as Trustee and are distributed according to the Trust provisions. The Trust can provide for a complex distribution of assets to various beneficiaries. An additional benefit is that the distributions can be age based. For example, a Trust but not a Will can make distributions to the decedent's children based on various attained ages, such as one-third (1/3) distribution of Trust assets when a child reaches age 25, one-half (1/2) of the remaining Trust assets at age 30, and the rest of the Trust assets at age 35. There are tax deferral advantages and creditor and beneficiary protections not available in a Last Will and Testament.
Irrevocable Life Insurance Trust
For higher net worth individuals, an Irrevocable Life Insurance Trust (ILIT) can exclude assets from federal estate taxation that have been titled in the Trust. This Trust is sometimes referred to as an Asset Replacement Trust. It can be funded by a life insurance policy equal to the estimated federal estate tax liability, and therefore replace the federal estate tax assessed against the decedent's assets that are not included in the ILIT.
Durable Power of Attorney
This estate planning document appoints a person or several persons to act as an individual's attorney-in-fact. It empowers the attorney-in-fact to make financial decisions on behalf of the person. The named attorney-in-fact has these powers either immediately when the Power of Attorney is signed or only after there has been a determination that the person is no longer capable of conducting his or her business or financial affairs. This Durable Power of Attorney survives the person's incapacity and is terminated at death. Use of this Durable Power of Attorney avoids the appointment of a Conservator by the Probate Court.
Durable Power of Attorney for Personal, Medical, and Mental Health Care
This document appoints a patient advocate to make medical and health related decisions only when the person (patient) cannot communicate his or her intent regarding medical decisions. Once the person's ability to communicate his or her intentions is restored, the patient advocate's powers are suspended. Use of this Durable Power of Attorney avoids the appointment of a Guardian to make medical and mental health care decisions.
Health Care Declaration
This document provides the patient advocate with end-of-life decisions when the person is in a coma or in a terminal health condition. It provides the patient advocate guidance in dealing with health professionals in the above referenced medical conditions. It is often referred to as a “living will.”
HIPAA (Health Insurance Portability and Accountability Act of 1996) Disclosure Authorization
This document lists the person or persons that can have access to the patient's physician(s) and hospital medical records. It is an authorization allowing the named individuals to obtain medical information from all third party health care providers. This authorization is effective even if the patient is able to make all medical decisions. The purpose is to assist the patient to obtain medical and health care information.
This entity in the form of a Corporation or a Trust is funded by part or all of an individual's assets to provide a perpetual fund for the exclusive use of religious, charitable, scientific, or educational purposes. This sponsor of the Private Foundation applies to the Internal Revenue Service for an exemption letter. An IRS approved Private Foundation is not subject to federal income taxation and qualifies for contributors to the foundation to obtain income tax deductions.
A Charitable Trust can be part of a comprehensive estate plan where a portion of an individual’s Trust assets are separate from the rest of the estate plan. It can take the form of a Charitable Unitrust or an Annuity Trust which provides income to individuals during their life with the Trust assets distributed to a charity at the death of the lifetime beneficiary. There are also Charitable Lead Trusts which provide income to a qualified charity for a designated time period with the trust assets distributed to non-charitable beneficiaries at the expiration of the charitable income term period.
Antenuptial (Prenuptial) Agreement
This estate planning document is a contract between two persons who intend to get married. It identifies how the assets are titled before the marriage and what, if any, changes to the title of these assets will be made during the marriage. It also addresses ownership issues of assets acquired during the marriage. To be enforceable, the terms of the agreement must be reasonable, there must be a full financial disclosure by both parties, each party must be represented by an attorney, and the Antenuptial Agreement should be entered into well before the intended date of marriage.
Special Needs Trust
This estate planning document is a special form of Trust where the beneficiary is qualified to receive various federal, state, and/or local Government benefits. The Trust is drafted so that the Trustee has complete discretion to distribute or not distribute Trust income or principal to the beneficiary. The purpose of this Trust is to provide access to additional assets to enhance the beneficiary's quality of life but not jeopardize the continued receipt of government benefits.
Retirement Benefit Trust
This is a form of Trust which guarantees the beneficiary an annuity for life. It is funded by the receipt of the Required Minimum Distribution of retirement assets that reside in a custodial account such as an Individual Retirement Account (IRA). The beneficiary receives an annual distribution based on his or her life expectancy. Flexibility is built into this Trust to provide for financial and medical emergencies. It works well when it is used with the outright distribution to the beneficiary of non-retirement assets.
This type of estate planning document is a Trust titled in the name of two or more grantors who are the Trustees. It is used for individuals with modest estates and no federal estate tax liability who want to avoid the probate of their assets. During the lifetime of the grantors, it is revocable or can be amended only when all grantors consent. At the death of one grantor, it can either become irrevocable or remain revocable depending on the agreement of all the original grantors.
Estate Planning Interview
We invite you to listen to Kenneth's radio interview on Estate Planning. Topics discussed are the advantages of using a Trust, the disadvantages of Probate, explaining the use of Special Needs Trusts, Medical and Financial Powers of Attorney, and a brief overview of Antenuptial (Prenuptial) Agreements.