Estate Planning is a broad area of law that includes such basic things as Wills, Durable Powers of Attorney, and Living Wills; however, much more is involved in an estate planning consultation with your attorney than just these documents. You should think of this consultation as a sort-of "legal checkup", to the same extent as you have a medical checkup with your Physician (you just do the legal checkup much less frequently). For your information, I have included an Estate Planning Questionaire for you to review and download. Also included for you to download is a discussion of Important Estate Planning concepts.
Should all adults have this legal checkup? In general, the answer to this question is yes; and it is particularly critical for those in the following categories; people with minor children, persons entering into a second marriage who have children from a prior marriage, persons with disabled children, and all senior citizens. Let me briefly discuss each of these areas.
If you have minor children, a Will is critical for many reasons; but primarily because it allows you to name a guardian for your children if you die while they are under 18. The Will also allows you to put your assets in trust (you would name the trustee) so that the manner and timing of the distribution of your assets to your children is done in a manner that you designate.If you have adult children and enter into a second marriage, an estate planning consultation is essential if you want to ensure that at least some of your assets go to your children upon your death. Methods of doing this include Prenuptial Agreements, Wills with a Trust (that provides income to your "new spouse" but upon her death at least a portion of what is left goes to your children), or a Revocable Living Trust.
Persons with disabled children know that their children typically receive benefits from the government. However, if you leave assets in your Will to the disabled children, the governmental benefits will cease until the child spends the assets left to them. A method of avoiding this unhappy result is to create a "Special Needs Trust" in your Will, that allows income from this trust to be used to supplement the benefits your disabled child receives from the government, and then when the disabled child dies, any remaining assets in the trust can go to your other children.
Senior citizens face the issue of their mortality; and, among other things, they must plan for issues of disability (that may require nursing home care), and issues relating to transfer of their assets for their children. Issues of long term disability are particularly difficult; however, where you have a married couple, one of whom needs nursing home care, there are methods of transferring most of the couple's assets to the well spouse, get the government to pay for the nursing home care needs of the "sick" spouse, and thus preserve the well spouse's economic quality of life. Senior citizens also must plan to transfer their assets on their death to their heirs; much of the discussion here revolves around issues of probate and whether it can feasibly be avoided. For example, as between spouses, probate can be avoided by a "Community Property Agreement"; although, there are times when a "Community Property Aagreement" can produce very negative side effects, so that it should be utilized only after receiving competent professional advice. Another method of avoiding probate is a "Revocable Living Trust"; these are very appropriate and effective in many cases; however, their benefits have been greatly oversold - bottom line is that they are fairly expensive, and you should not get one unless you understand its pro's and con's.
Jon A. Clark has been practicing Estate Planning Law for over 30 years, and will give you professional and cost effective advice. All clients receive very competitive rates on fees, and a free phone consultation. Contact Jon Clark today for your free consultation.