Confused by Estate Planning Documents? Here’s a Primer to Help
A thoughtfully created estate plan can provide families with the confidence that their wishes will be known and can contribute to harmony within families for generations to come.
Estate planning documents can often be confusing, however, and many clients find the topic uncomfortable to address. With this in mind, we list and briefly explain below the basic documents used in creating estate plans for individuals or families.
This is intended to be a high-level overview of typical estate planning documents. Small-business owners and people with family members with special needs, among others, should dig deeper. Each state has its own rules involving these documents, including several states that follow community property law, so state law must be considered when initially drafting documents or when changing state residence.
At Altair Advisers, we believe in collaborating with estate planning, tax, insurance and other professionals to ensure the best outcomes for our clients. This article is no substitute for the professional advice of a qualified estate planning attorney in your jurisdiction and we strongly recommend you seek such advice.
A will provides for the distribution of assets following death and applies only to assets that are owned in an individual’s name. It does not govern assets owned jointly with rights of survivorship, as tenants by entirety, nor does it direct assets that pass by contract or a beneficiary designation (IRAs, life insurance and variable annuity contracts, qualified plan benefits or TOD/POD accounts), or assets held in trust. A will may direct personal property that cannot be titled, such as clothing, jewelry, furniture and other personal effects such as art and collectibles.
The will must be validated through a public process known as probate. Probate transfers the estate of a decedent via an appointed executor or personal representative to the estate’s beneficiaries once all assets are identified and gathered and any debts are settled. The timeline and costs vary by state. Probate is overseen by the jurisdiction where the deceased was domiciled and/or where the subject property is located. This can be especially burdensome when real property is owned across numerous states and not held in trust.
A trust is created to control and oversee administration of trust assets. Trusts are designated as either revocable or irrevocable. (A testamentary trust is a separate category – a provision of a will creating a trust with its own set of provisions and terms to manage the assets of the deceased.)
A trust typically involves at least three parties. The grantor/settlor is the creator of the trust. The trustee – often the grantor to start for revocable trusts – is named to carry out and oversee the trust’s terms including administrative and investment powers; successors are named in the trust to take over in the event of the incapacity or death of the initial trustee. The beneficiaries are most commonly spouses, children, friends, family and/or charitable organizations.
Some trusts may also provide for additional roles to expand oversight by way of a trust protector and/or a trustee remover. Specific terms may be included to provide for future generations and special provisions.
Revocable living trusts can be used to manage property in the event of the grantor’s illness or incapacity. The trust grantor can include terms to personally define the way in which they may be deemed incapacitated. A grantor may include terms and conditions surrounding health care needs and oversight.
A trust also allows for the ownership of real estate in various states and eliminates ancillary probate in the state in which the real estate is located.
Durable Power of Attorney for Property
This document allows an individual, known as the principal, to appoint an agent to act on their behalf in the event of incapacity. An individual may only create this document when they are deemed to be of sound mind. The agent has the power to sell property, manage investments and even make gifts when specified.
Advanced Medical Directives
Advanced medical directives express one’s health care wishes in the event that they are unable to communicate at the time of care.
- Durable healthcare power of attorney – (also known as a healthcare proxy, depending on the state of residence) – Document appointing a person to oversee and make healthcare decisions when a patient is unable to do so. Generally, anyone over the age of 18 may serve as agent/proxy. Document lasts until revoked or upon death, if no termination date is specified.
- Living will – States a patient’s preferences of different types of treatment in different types of circumstances, most commonly in an end-of-life state.
- Medical orders for life-sustaining treatment (MOLST) – These are standing orders that are decided on by a patient and their doctors for end-of-life preferences. They become part of a patient’s chart and are followed in a health care setting. Also known as physician orders for life-sustaining treatment (POLST); different states recognize different names of these documents.
- Do-not-resuscitate order (DNR) – A medical order that is entered into a patient’s chart at a particular hospital or with a primary care physician.
- Five Wishes document – This form, which is legally recognized in 42 states, can be a more specific alternative to a health care proxy where allowed. Created with assistance from the American Bar Association’s Commission on Law and Aging, it lets a patient lay out final wishes in detail as well as specify how they are to be treated if they become seriously ill.
Advance Medical Directives: Living Will, Medical Orders, Do Not Resuscitate Orders – American College of Trust and Estate Counsel Foundation https://actecfoundation.org/videos/advance-medical-directives-dnr-molst-polst/
Demystifying The Estate Planning Process – Chicago Estate Planning Council http://e.learn.com/files/upload/resources/cepc/cepc_storyline_12.13/story_html5.html
EXTRA POINTS ABOUT ESTATE PLANNING
In the COVID-19 era, additions may be considered to allow for decision-making via Zoom, email or other electronic means. Experimental medications or intubation may also be considered and should be identified in writing as desired.
Planning for digital assets: It is not uncommon for households to have a growing list of digital assets: social media accounts, travel points, cryptocurrency , documents/photos saved on computers, phones and in the cloud – not to mention a list of passwords securing access of these assets at several layers. Access to these important files and accounts is not allowed once the owner dies or becomes incapacitated. It is important to document these assets, passwords and any other specific instructions, including assigning access to your fiduciary or a family member. Password managers can be used to streamline passwords and assist with access when the time comes.
Selecting your trustee/executor: When choosing an executor, trustee or power of attorney, it is important to identify someone who understands finances, has a good business sense and is able to execute your wishes.
Extra care should be taken if considering someone who lives out of state, in-laws or those who may not be able to seek out the advice of professional counsel as needed. Families often empower professionals (independent corporate trustees) to serve in these roles to mitigate the burden on family members and lower the chances of conflict among beneficiaries.
Tips on storage of documents: It is important to store estate planning documents in a way that is easily accessible, especially for frequent travelers and for out-of-state family members. Health care directives should be provided to health care professionals and also shared with the appropriate designated agents.
Estate planning is an ongoing process for many families, as the modern family can be quite dynamic over time. It is important to consider preparing (or updating) documents for a family member turning 18, in order to ensure continuity for health care decisions and protection of accumulated wealth. Documents also should be reexamined when life transitions take place and revised as needed.
The estate planning process can be complicated. Altair can assist you by acting as a sounding board, examining a current estate plan or sparking conversations within families to start the process. We strongly recommend that you work with a qualified estate planning attorney to establish an appropriate plan. We also encourage you to ask other family members you are responsible for, including young adult children and the elderly, if they have a plan in place that accurately reflects their current wishes.
The material shown is for informational purposes only and should not be construed as accounting, legal, or tax advice. Altair Advisers LLC is a registered investment adviser with the Securities and Exchange Commission; registration does not imply a certain level of skill or training. While efforts are made to ensure information contained herein is accurate, Altair Advisers cannot guarantee the accuracy of all such information presented.