This area of service encompasses the drafting and finalizing of estate documents for individuals and couples; specifically, Wills, Trusts, Power of Attorneys for Assets and Advanced Healthcare Directives. It also encompasses the supervision of the execution (signing) of the documents, the signatures of two disinterested witnesses, making requisite copies of the executed documents, and sending the executed originals to the client together a closure letter to the client and to the parties named as fiduciaries in the documents.
Last Will and Testament
A few options regarding the Will are as follows.
Simple Wills -- A Simple Will is one where the husband leaves everything to this wife and the wife to her husband, if living, and if not, then to their children or other third parties. A "self proved Will" is one that is signed by the Testator (the maker), witnessed by two disinterested witnesses and notarized.
Complex Wills -- A Complex Will are used for tax planning and/or efficient transfer of assets to children/grandchildren. Again, a self proved Complex Will is one that is signed by the Testator (the maker), witnessed by two disinterested witnesses and notarized.
Codicil -- A Codicil is an amendment to a Will. In the case of most Simple Wills it is more efficient, both from a cost and a quality perspective, to draft a new Will.
Check out the video "Do I need a Will?" for more information.
A few options regarding Trusts are as follows.
Testamentary Trust -- A Testamentary Trust is built into a Will and as such, it does not become operative and enforceable until the death of the Testator (the maker) of the Will. A Trustee(s) is named together with a Successor Trustee(s). The terms and conditions of the trust document dictate the powers and responsibilities of the Trustee(s). A Testamentary Trust is often used by couples with minor children or elderly dependent parents to provide independent and competent management of their assets in the event they both die at the same time or upon the death of the second to die. As distinguished from a named Guardian of a minor child or dependent parent who is responsible for the parental or custodial care of the minor child or elderly parent, the Trustee of the Testamentary Trust is responsible for the management and protection of the assets of the estate of the deceased party.
Revocable Living Trust -- A Revocable Living Trust becomes operative and enforceable when it is executed, properly witnessed and notarized. It requires that the Grantor (the maker) to transfer ownership of all of his/her/their assets to trust. The Grantor is the Initial Trustee and also the Primary Beneficiary. He or she serves in this roles for as long as he or she is legally capable of acting in this capacity or until death. Upon the Initial Trustee becoming legally incapable (disabled) the party(s) named as named Successor Trustee becomes the Trustee and remains so until the Initial Trustee is no longer disabled. Upon the Initial Trustee's death, the Successor Trustee becomes the trustee. This trust is a form of a Will substitute in that its terms and conditions dictate what is to be done with the estate of a deceased Initial Trustee. It is also a form of a substitute for a Power of Attorney for Assets. It is often used by parties wanting privacy (the document does not have to be filed with the Register of Wills) and/or to avoid the cost of time and money of probating a Will.
Irrevocable Life Insurance Trust -- Primarily used by high income/net worth individuals and couples to minimize estate and inheritance taxes, to transfer assets to spouse and/or children/grandchildren, to protect assets against creditor claims, provide liquidity to the Executor of the Grantor's estate and provide third party administration, investment management and tax reporting. As the grantor (the maker) is irrevocably gifting the trust asset (an insurance policy) to the trust and forever gives up any and all control or beneficial interest in the trust, the trust assets are not a part of the Grantor's estate and therefore not subject to federal estate taxation of state inheritance tax liability. To protect the exclusion from gift taxation, a special step is taken each time a premium payment is made.
Grantor Trust -- A Grantor Trust is often used by high income/net worth individuals and couples for tax planning and efficient/effective transfer of assets to spouse, children and grandchildren. Because the Grantor (the maker) retains control over the trust, all income generated by the trust during the Grantor's life time is taxed to the Grantor. However, upon the Grantor's death, estate and inheritance liability is significantly, if not entirely, mitigated. There are various forms of Grantor Trust, each gauged to meet specific needs and requirements of the Grantor.
Charitable Trust -- A Charitable Trust is used by high income/net worth individuals and couples for tax planning and efficient/effective transfer of assets to both a charity and to the grantor's family. Depending on the type of trust, the charity either receives trust income for a period of years with the principal then going to named beneficiaries (usually the spouse/ children/ grandchildren of the Grantor) or the trust principal after payment of trust income to the named charity's interest in the trust income or principal and the named beneficiaries (spouse/ children/ grandchildren) are assured of either a stream of income over a period of years or eventual receipt of the trust principal.
Power of Attorney for Assets
Advanced Healthcare Directive
Including the Living Will
A Power of Attorney for Assets (POA for Assets) is a tool that can be used to give someone full or limited rights to make decisions or perform certain acts in your place and can be customized to cover virtually any situation. Many people are familiar with using the limited power of attorney to give a company or group voting rights for stock they may own. A POA can also be used to allow family members or your designated representative the power to write checks, pay bills, sell real estate or assets, make inquiries into certain accounts, close accounts, and invest.
The Types of Power of Attorneys fall into one of three categories:
Durable Power of Attorney -- allows your agent to continue to act on your behalf if you become incapacitated.
Non-Durable Power of Attorney -- includes a general or limited power of attorney, and terminated upon you becoming incapacitated.
Springing Power of Attorney -- takes effect on the occurrence of a named specified event which could be when you become incapacitated.
The Comprehensive Healthcare Directive covers two distinctly different kinds of agency delegation: (i) when the Principal (the maker) is temporarily unable to make his/her own medical decisions, but is expected to recover his/her ability to so; and (ii) when two documents state in writing that the Principal is in an end life status. The Principal appoints an Agent and Successor Agent to handle his/her medical affairs an/or end life decisions in the event they are disabled to the point of not being able to act for themselves and/or are in a terminal condition, lasting until the earlier of the Principal's revocation and/or the Principal's recovery or the Principal's death.