Frequently Asked Questions

Estate Planning FAQ

     What is a Will?

A Will, or Last Will and Testament, is a legal document instructing the court as to how you want your assets distributed after your death.

     Why would you draft a Will?

Drafting a Will allows you to do the following

• Choose an executor, the person who will manage the distribution of your estate per your instructions set forth in your Will. This includes who you want to receive your assets, property, possessions, sentimental items, and family heirlooms.

• Designate how your heirs will receive your assets. Absent a Will, children have the potential to inherit all of your hard-earned assets (including retirement) at age 18. That may be overwhelming or even to the detriment of a young adult. With a Will, you can make your intentions clear to the court and prevent scenarios wherein a child may inherit too much too soon. For that reason, a Will allows your assets to be distributed in a structured fashion.

• If you have minor children, a Will allows you to name a guardian (or guardians) for them. A guardian may be a trusted family member or friend who would care for your children in the event that you pass away.

• A Will allows you to express your wishes for final arrangements such as a preference for burial or cremation.

     What is Probate?

A disadvantage of Will based estate planning is probate.  Probate is the process wherein the state court oversees the distribution of your estate.  The probate process can be time consuming, expensive, and burdensome on your loved ones.  Depending on the state you live in and the size of an estate, the probate process can take years.  Probate is often expensive due to attorney’s fees, executor commissions, and court costs.  While in probate the court, not your family, maintains control of your estate. This includes the timing of distributions to your beneficiaries.  Additionally, probate proceedings are public, leaving little privacy for your loved ones as your estate is settled.

     What is a Living Trust?

A Living Trust is a legal document, created by a “trustor,” naming a “trustee,” to manage their assets while they are alive.  Upon the death of the trustor, the trustee is given the responsibility of managing the assets in the trust for the benefit of the eventual beneficiary.  A well written Living Trust can streamline the transfer of property and distribution of assets after one’s death.  

A Living Trust can be “revocable” or “irrevocable.” A Revocable Living Trust can be changed while the trustor is alive, whereas an Irrevocable Living Trust cannot. With a Revocable Living Trust, the trustor maintains the right to modify (or completely revoke) the trust during their lifetime and plan for future events. This allows them the freedom to make changes as necessary as well as the security of knowing that their assets are protected in the trust.

One of the greatest benefits of a properly funded Living Trust is the avoidance of probate. As long as all assets have been transferred, a Living Trust Will most likely avoid probate.  Avoiding probate can greatly reduce the expense, amount of time, and burden on your loved ones while distributing your estate.  Additionally, privacy is maintained as the trust documents conveying your instructions for asset distribution are not public or subject to court approval. The contents of your estate, the value of your assets, and who they pass to remain private.  

     Durable Power of Attorney?

Proper estate planning involves planning for the unexpected.  If you become incapacitated or unable to make decisions on your own behalf, who will?   Many people believe that their spouse or adult children would automatically take over for them in case that they were to become incapacitated. The truth is, before anyone can take control of your finances or make decisions on your behalf, the court must be petitioned and you must be declared legally incompetent.  This process is time consuming, expensive, and creates stress for your loved ones.  

To avoid lengthy court proceedings to determine who will be given the power to make decisions for you, you must appoint someone to do so with a Durable Power of Attorney.  A well written Durable Power of Attorney allows you to appoint someone (usually a trusted friend or family member) to make financial or healthcare related decisions for you in the event that you cannot make these decisions on your own. Having had the forethought to plan ahead, you will have peace of mind in knowing that someone you trust will act in your best interest.

     What is an Advanced Healthcare Directive?

Including an Advanced Health Care Directive in your estate plan instructs your family and medical providers as to your wishes regarding your medical care should you be unable to make decisions on your own. This allows you to;

• Name an agent to make healthcare decisions for you in the event that you become incapable of making them yourself.

• Give specific instructions regarding any aspect of your healthcare including the selection of healthcare providers, providing or withholding artificial nutrition or hydration, and whether or not you want life sustaining treatment or pain relief.

• Authorize or refuse to make anatomical gifts, allow an autopsy, and give direction as to the disposition of your remains.

Speaking with family and friends, along with a well written Advanced Healthcare Directive, can ensure that decisions about your treatment and future medical care are carried out as you intended.

jump to the top