Have you ever wondered how many documents are necessary to have a well-crafted estate plan? The short answer is often: “more than you think.” However, there is NOT a “one-size-fits-all” approach. Following is a list of the important documents commonly used in estate planning.
- Will. A will designates another person or entity to settle your estate. It directs how, and to whom, your property will be distributed, and names the person who will serve as guardian of your minor children, if any. Keep in mind that property controlled by a will is subject to the probate process.
- Revocable Trust. As an alternative to a will, a revocable trust (often referred to as a "living" trust) may serve as your primary estate planning tool. Lifetime and post-death benefits include privacy, probate avoidance, flexibility, and more. Current tax rules treat a living trust as if it does not exist, for income tax purposes; thus, you will report income on your Form 1040 as always. Upon your death, a living trust directs the disposition of your property.
- Financial Power of Attorney. This document appoints a person or entity to manage your finances during your lifetime. It frequently contains broad powers regarding financial matters, such as paying bills, signing checks, managing investments, buying and selling property, accessing your safe deposit box, filing tax returns, and so forth. In the absence of Financial Power of Attorney, a court-appointed guardianship may be necessary, should you become disabled.
- Health Care Power of Attorney. Health Care Power of Attorney appoints someone to make health care decisions on your behalf, in the event of your incapacity. It speaks to matters such as withholding or withdrawing a feeding tube, or the power to admit you to a community-based rehabilitation or nursing home. It’s vital to remember that, should you not execute this document, such decisions cannot be made without court approval.
- Living Will. A Living Will informs your physician and family that, in the event of a terminal condition or persistent vegetative state, you either do or do not wish to utilize a feeding tube and/or other life sustaining procedure(s). This document is also known as a Declaration to Physicians.
- HIPAA Authorization. A HIPAA Authorization is a means of coping with potential problems that the HIPAA law could create regarding trustee succession and/or activation of a power of attorney, due to incapacity. Under HIPAA rules, conversations between medical professionals and third parties can be complicated. As such, this may present practical problems for an agent under a power of attorney or successor trustee to secure the necessary certification of incapacity, if this document is not executed.
- Tangible Personal Property Statement. This document lets you direct how certain tangible personal property items (i.e., tools, jewelry, household furniture, artwork, etc.) are to be distributed at your death. This statement is separate from your will or revocable trust, but is incorporated by reference. Its primary benefit is that it can be periodically updated during your lifetime without requiring a formal amendment of your will or living trust.
- Beneficiary Designation Forms. Certain assets, such as life insurance proceeds, Individual Retirement Account assets, and qualified retirement plan (i.e., 401[k]) assets transfer by beneficiary designation at your death. Beneficiary designation forms allow you to designate the person or persons to whom these assets should pass. By designating a living person or your revocable trust as beneficiary, these assets will escape probate. Don’t forget to coordinate your beneficiary designations with other elements of your estate plan, to ensure that your assets pass according to your wishes.
- Marital Property Agreement. A Marital Property Agreement allows you to classify the ownership of your property under Wisconsin law. Benefits include, but are not limited to, tax planning, probate avoidance, and the ability to exempt property from Wisconsin’s marital property laws, if desired.
Additionally, if you own a business, consider including succession and business continuation plans with some combination of the documents listed above.
In summary, a sound estate plan depends on having the right documents for your individual situation. Your specific document needs will be determined by many different factors, including age, family composition, family issues, income, net worth, marital status, health, state of residence, property owned out of state, business ownership, and the need/desire for privacy.As always, please consult with an attorney who specializes in estate planning before adopting or making changes to your estate plan.