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Estate Planning

Estate planning can be a difficult subject: everyone needs an estate plan, but few people like to contemplate the reason why one is needed.

We all have something in common; we only have a limited time – be it long or short – on this earth. But while an estate plan is necessary for everyone, the tools used to plan for your particular estate should be unique to you, your family, your situation.

What is an Estate Plan?

It’s a common myth that an estate plan only designates the people who will receive your property upon your death. Comprehensive, modern estate planning does so much more.

An estate plan may consist of a Living Trust, Testamentary Trust, Irrevocable Trust, Pour-Over Will, Last Will and Testament, Living Will, Funeral Instructions, Burial Instructions, Financial and Medical Powers of Attorney, Non-Probate Transfers, Payable on Death Designations, Deeds, and other governing instruments.

Estate planning allows you to delegate your personal rights (financial and/or medical) to others while you are alive and after you have passed.

Estate planning ensures that your assets are managed and distributed according to your wishes, along with the necessary protections for your assets and your beneficiaries.

Some estates may need simple beneficiary designations on your financial accounts and deeds, while others may require a trust.

Elements of a Comprehensive Estate Plan

There’s a lot that goes into a comprehensive estate plan. The combination of tools that make up your plan will depend on your unique situation. Remember, a good estate plan could be as simple as a Will, Financial Power of Attorney, and a Health Care Power of Attorney, or it could be much more complex. There are many more documents that supplement the ones mentioned on this page.

The main thing is to be proactive; to make a plan to mitigate future unfortunate circumstances. You never know what life is going to give you or when, so it is important to control the things that you can now.

If you’re detail oriented, explore the contents below where we delve deeper into each element. If you’ve already read enough, let’s meet for a free consultation to discuss your situation.

General Power of Attorney

A General Power of Attorney means you do not have to worry about your “financial life” while you are unable to make those decisions yourself. You may need your “agent” to act on your behalf if you are on vacation or in the hospital. For instance, let’s take a worst-case scenario: if you were to suffer from a debilitating medical condition and become bedridden in hospital for an extended period, your agent can legally deal with others on your behalf. They can pay your bills, deal with creditors, take care of your banking needs, and so on.

You can either create a limited power of attorney that will allow your agent to temporarily act on your behalf, or you can create a “springing” durable power of attorney, which will allow your agent to act on your behalf only if you become incapacitated.

Health Care Power of Attorney

Who do you trust to make medical decisions for you if you were incapacitated? A Health Care Power of Attorney allows you to appoint someone to make medical decisions on your behalf when you cannot. It is always best to have wishes regarding your health care in writing, but sometimes unexpected issues arise. That’s when you need someone to make decisions for you, based on his or her knowledge of you and your wishes.

HIPAA Release

Your medical records are protected by HIPAA – the Health Insurance Portability and Accountability Act of 1996. Your medical records and data are not to be shared with anyone without your consent. A HIPAA Release or waiver will allow you to designate a person who can obtain your records on your behalf and share them with who you choose. For example, your agent could share your medical records with your home-loan lender to possibly defer your house payment for a period of time.

Living Will

A Living Will is often confused with a Last Will and Testament. A Living Will states your wishes regarding your end-of-life care. You can choose to receive only “comfort care”; or make specific limitations on your treatment; or prolong your life to the greatest extent possible. 

Have your wishes set in place, so they can be followed. Do not force a loved one  to make the hardest of decisions for you. Most people do not want to be kept alive in a vegetative state; however, most relatives do not want to be the person to “pull the plug.” Put your end-of-life wishes in writing in a Living Will.

Guardianship Designations

If you die, generally your children will be taken care of by the surviving parent. But what if you and your spouse die in the same accident? Or, what if the surviving spouse is incarcerated? What if your parents are too old to care for your children? With a Guardianship Designation within an estate plan, you designate who you wish to care for your children in the event that you pass. This designation can prevent a nasty court battle over who will serve as the children’s guardian and/or conservator. It can also prevent a family member, who has no business raising them, from taking custody of your children and their future.

Last Will and Testament

A Will not only designates who is to receive property from your estate, but it also designates who is to be the personal representative (also known as an executor) and whether or not if he or she is to be bonded. It sets forth the powers of your personal representative, can state guardianship designations for underage children, and create testamentary trusts for those minor children.

If you do not have a Will, your estate is distributed according to Arizona’s laws of intestacy. This generally means that your spouse will receive your estate (unless you have kids from a previous relationship). If you do not have a spouse, then your kids will receive your estate. However, many unjust situations can occur under the law of intestacy. 

Tangible Personal Property List

A Tangible Personal Property List works in conjunction with a Will. Creating this list allows you to designate certain personal belongings to the people you choose. The list can be changed and updated from time to time, without having to redo your Will.

Revocable Living Trust

Trusts sound intimidating, but they are very efficient tools to distribute property in a way that a Will cannot. Most trusts are revocable at any time prior to your passing. A trust allows you to:

  • Avoid probate (court hearings and public record).
  • Provide asset protection for the surviving spouse.
  • Avoid conservatorships for you and your minor children.
  • Protect your children from outright distributions at an age where they are not responsible to handle wealth.
  • Protect your child’s inheritance from creditors, bankruptcy, disinheritance (surviving spouse remarries), and divorce proceedings.
Burial Instructions

An estate plan should also include instructions regarding your remains.

  • Do you want to be cremated and have your ashes spread in a certain place?
  • Do you want to be buried near another loved one who has already passed?
  • Do you want to donate organs to help another?
  • Do you want to donate your body to science?

Often after someone has passed, the surviving family members disagree about what to do with the body. Put it in writing, so you can prevent a fight between your family members and avoid contentious litigation.

Beneficiary Deed

A Beneficiary Deed is a great way to give real property (real estate) to someone after your death and avoid probate at the same time. This type of deed states that upon your death, the grantee is to receive your property – subject to its mortgage. The deed is recorded on your property but doesn’t transfer any ownership until you die. The deed can be revoked at any time and is a much cheaper way to gift real property than going through probate.

Request a Free Consultation with Praesidium Law

Estate plans can be pretty simple, or very complex, so let’s talk about yours. To request a free estate planning consultation, please complete the form below.

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