5: The Basic Planning Tools
Although a will is the essential estate planning tool, it is not, as most people believe, carved in stone. A will may reflect your written intentions for the disposition of your estate but unfortunately, it may not be the final word. There are several instances where the instructions of a will can be overridden by:
- Property held in trust
- Named beneficiaries of retirement plans
- Partnerships or other business agreements
- State laws
It’s wise to familiarize yourself with all the basic tools of estate planning so you and your planning team can make informed decisions regarding the distribution of your assets.
- Your will
Regardless of any other steps you take to plan your estate, you will want to execute a last will and testament. If you don’t have a will designating the disposition of your property, the state will make decisions about who gets what assets, along with other legal decisions that may not be in accord with your original intentions. It’s known as “dying intestate” and should be avoided at all costs. Dying intestate can be costly in more ways than just financial.
You’ll also want to name the estate executor in your will -- this is the person or institution who will administer the distribution of your estate.
- Substitutes for wills
Several plans and financial instruments can function alongside your will to pass assets to your heirs. Think of substitutes for wills as alternative ways of leaving property or assets that are in addition to your will, not in lieu of it.
Arrangements like life insurance policies, joint investment and bank accounts, IRA's and other retirement accounts, royalties, and shares in a family business can be "will substitutes" and should therefore be reviewed, and amended if need be, as you plan your estate.
- Revocable trust basics
I've heard about "revocable trusts." How do they work?
A revocable living trust is a trust you create during your life, titling all or selected assets to it that will be managed by a trustee. It is revocable because the creator (grantor) of the trust can terminate the trust at any time during their life. You can serve as the trustee during your life if you wish. At the time of your death, the trustee will distribute or continue to manage the assets within the trust in accordance with your wishes.
There are some distinct advantages to a living trust. They include:
- All trust assets will be distributed or managed as you wish at your death and will not be reviewed by the Probate Court, thus saving probate court costs. If you own property in another state other than your state domicile, your estate will avoid being subject to more than one probate court.
- In your living trust you can appoint a trustee to manage trust assets in the event that you can no longer do so. At death, the trustee can continue to manage trust assets for any living beneficiaries for their lives or for a term of years.
- In contrast to the Probate Court, which has public access, a living trust will preserve your family’s privacy.
- A living trust is not a device that will save you estate or inheritance taxes, but it can assist you in reducing your estate settlement costs. You can still name and benefit your charitable interests in your living trust. You would use the same kind of bequest language that you would use in a will.
- Other estate planning tools
"Leave no stone unturned," said the Greek dramatist Euripides. And so it is with estate planning.
Though we have covered the basics, there are additional planning tools you should not overlook when it comes to the protection of you, your heirs, and your assets. That is, after all, the purpose of an estate plan, so you may want to consider some or all of the following additional planning tools:
- Power of Attorney, Health and Financial. The designation of someone you trust to make decisions regarding your medical care and financial affairs when you are unable or no longer willing to make those decisions. They may be assigned to separate individuals or combined and assigned to a single individual.
- Living Will. This is an advanced directive to your physician that provides information relative to your wishes in the matter of life-sustaining care. Do you or don’t you wish to be kept alive by artificial means? (In some states, if you refuse life-sustaining care you must also have available a non-resuscitation order in addition to your living will.)
- Emergency Information List. This is a road map to help untangle the paper trail leading to important documents, names, addresses, phone numbers, and other details that provide information relative to obtaining the assets of your estate. A simpler method would be to keep everything of that nature in a fireproof box and turn it over to a trusted family member for safekeeping.
- Instructional Letter. Written instructions passing along your personal wishes regarding final disposition; burial, cremation, obituary information, funeral plans; any such matters not included in other documents.