While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones. Proper estate planning not only puts you in charge of your finances, it can also spare your loved ones of the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.
If you become incapacitated, you won’t be able to manage your own financial affairs. Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated. The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent. This process can be lengthy, costly and stressful. Even if the court appoints the person you would have chosen, they may have to come back to the court every year and show how they are spending and investing each and every penny. If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home. A will does not take effect until you die and a power of attorney may be insufficient.
In addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care. The law allows you to appoint someone you trust - for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself. You can do this by using a durable power of attorney for health care where you designate the person to make such decisions. In addition to a power of attorney for heath care, you should also have a living will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.
If leave your estate to your loved ones using a will, everything you own will pass through probate. The process is expensive, time-consuming and open to the public. The probate court is in control of the process until the estate has been settled and distributed. If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. It is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate. Your surviving spouse may be forced to apply to the probate court for needed cash to pay current living expenses. You can imagine how stressful this process can be. With proper planning, your assets can pass on to your loved ones without undergoing probate, in a manner that is quick, inexpensive and private.
In your estate plan, you should also address issues regarding your children’s education. If you have young children, you may want your surviving spouse to have the option of not being employed so that he or she can devote more attention to your children. If your spouse is inexperienced in financial matters, your estate plan should provide for assistance with financial management, such as setting up trusts. In addition, your estate plan should consider the consequences of both you and your spouse dying simultaneously. If you have minor children, you will want to select someone to manage your assets for their benefit as opposed to leaving this decision with the court. In this situation, your estate plan should also address when your children will receive your assets outright, free of trust. All too often, children receive substantial assets before they are mature enough to handle them properly, with devastating results.
Even more pressing than financial matters is the issue of selecting legal guardians who will raise your children if you and your spouse die prematurely. You should give careful thought to your choice of guardian, ensuring that he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary. Make sure that your plan does not create an additional financial burden for the guardian.
No matter how overtaxed you think you are during life, Uncle Sam will want to review your estate at death to ensure you don’t owe him that one final tax: the federal estate tax. Whether there will be any tax to pay depends on the size of your estate and how your estate plan works. Many states have their own separate estate and inheritance taxes that you need to be aware of. There are many well-established strategies that can be implemented to reduce or eliminate death taxes, but you must start planning process early in order to implement many of these strategies.
Do you have a favorite cause, charity or religious organization? You can use your estate plan to provide assistance for such organizations, either during your life or at your death. This is one of the few instances in which our government actually provides you with incentives to do so.
The ultimate benefit of a well-crafted estate plan is that it provides for your loved ones in an effective and efficient manner by avoiding guardianship, probate, estate taxes and unnecessary delays. It will lessen not only your own stress, but also that of your loved ones. It's worth the time, effort and expense.