Estate Planning Basics
Estate Planning, the Right Way
Do you want to ensure that your health, your family, and your assets are taken care of in the future in the way that you’d like them to be? At Morgan & DiSalvo, we help our clients create complete, customized estate plans that leave no stone unturned when it comes to determining the most important aspects of their futures.
What is Estate Planning?
You currently have unlimited freedom to handle your financial and body (health care) decisions as long as you do not break the law. But what happens when you are no longer able to make these types of decisions, including if you ever become incapacitated and eventually upon your passing? State law, court -based processes exist to deal with all these issues. While these processes are necessary if you have no other choice, they can fail to carry out your desires, as well as being unpleasant, onerous and expensive. The good news is that state laws normally permit you to privatize these processes, so you can decide what is to happen, who is to benefit and who will carry out your desires. Estate Planning at its core is the privatization of state law, court-based processes that would otherwise apply during incapacity and death.
Another way to describe estate planning is that it gives you the power to control what is otherwise uncontrollable due to incapacity or death. Through estate planning with a qualified attorney, you can arrange for your trusted individuals or professionals, known as fiduciaries, to assist you during your life, if needed, and thereafter carry out your plan for the eventual distribution of your wealth as you desire to your loved ones and, possibly, to your favorite charitable organizations. These various fiduciary positions include: (i) your agent under your Power of Attorney; (ii) your health care agent under your Advance Directive for Health Care; (iii) the Executor under your Will; (iv) the Trustees under any trust created as part of your estate plan; and (v) the guardian for any child of yours under age 18 after the death of both parents.
We recommend reviewing your estate plan about every three (3) to five (5) years to ensure it still properly reflects your intent considering what has happened to your family, finances and changes in the law. At that time, we will also recommend that you update your agency documents, including your Power of Attorney (for financial and property affairs) and your Georgia Advance Directive for Health Care, to help ensure that these agency documents are more readily accepted when they may be needed.
Core Estate Planning Documents
With comprehensive estate planning, you will end up with a core set of legal documents that appoint those you trust (fiduciaries) and direct them on how to deal with your affairs upon your incapacity and death. This core set of estate planning documents (also known as your base estate plan) in Georgia include:
- Power of Attorney [Also see POA Newsletter]
- Advanced Directive for Healthcare
- Will (as primary document or as pour-over with RLT structure)
- Revocable Living Trust (“RLT”) (if RLT structure is chosen) [Also see RLT Newsletter]
How to Structure your Estate Plan
Most people have distinct preferences about decisions that will one day be made about their personal care and assets.
No single template can cover those bases as carefully or thoroughly as your Georgia estate, Will, and trust attorney. A qualified attorney will know what questions to ask to help structure the best plan for your needs. However, the following three (3) questions should always be asked.
Question 1: How should assets pass upon the first spouse’s death (for married couples)? This may also apply to non-married couples in a committed long-term relationship. (See our newsletter on this topic.)
If you are married with a blended family or have no children, important additional issues must be considered. If you are married and plan to pass assets to children or other non-spouse loved ones at your passing even if you are the first spouse to die, also see Question 2 below. (See our newsletter on this topic.)
Question 2: How do you want to pass assets to children or other non-spouse beneficiaries? (See our newsletter on this topic.)
Question 3: Should you use a Will or Revocable Living Trust (along with a pour-over Will) as your primary estate planning document? (See our newsletter on this topic.)
These are the basic questions that help determine the big picture structure of your estate plan. After this is determined, specific questions must be asked to flesh out the many details of your individualized estate plan. Working with passionate professionals with years of estate planning experience ensures that your desires will be carried out as you desire while reducing the cost, hassle, and taxes that may otherwise apply. Such planning will also help ensure that no disputes arise among your loved ones after your passing. At the end of the day, well done estate planning eliminates uncertainty, leaves you with peace of mind, and gives you confidence that you have greatly reduced the burden of settling your affairs for your loved ones.
How Assets Are Owned and Beneficiaries Designated is Critically Important
When an estate plan fails, it is normally for one of three reasons: (i) fail to have well drafted and up-to-date estate planning documents in place; (ii) chose wrong people or professional to serve as fiduciaries under your estate plan; or (iii) failed to properly own your assets or designate beneficiaries in a manner consistent with your estate plan.
At Morgan & DiSalvo, we are passionate about the services we provide to our clients, and this includes going out of our way to help ensure that our clients understand what they need to do to not only properly own their assets, but also to properly designate the beneficiaries on their IRA and Qualified Retirement Plan accounts, life insurance, and possibly financial accounts and financial assets. When the right answer is to have IRA and Qualified Retirement Plan accounts eventually pass to trust(s) for the benefit of your loved ones, we also help you consider the options available under the Required Minimum Distribution Rules as part of your estate planning document structuring process.
Other Estate Planning Documents to Create
These are two (2) additional non-legal documents that we believe our clients should create as part of their estate plan.
• Ethical Will. Essentially a “non-financial” Will of beliefs, realizations, and knowledge you wish to pass on to your loved ones. This can be in writing, an oral recording, on video or even be interactive using more cutting-edge technology. While not required, ethical wills can be incredibly impactful on your loved ones.
• Letter of Instruction. Significantly reduce the hassle on your fiduciaries (those that will be handling your affairs upon your incapacity and death) by providing them with as much information as possible to help them do their job all in one writing (such as a 3-ring binder) or other location.
At Morgan & DiSalvo, we believe proper estate planning is a thorough and individualized process. We work with you to structure your legal documents to ensure your desires are carried out, while minimizing any costs, hassles, taxes and avoiding destructive post-death disputes.
For more information, please see:
- Do You Need to Update Your Will and Other Estate Planning Documents If You Change Your State of Residence?
- Estate Planning – The Big Picture, but Critically Important, Issues.
- The Benefits of Proper Estate Planning
- “Do-It-Yourself” Wills & Other Estate Planning – If You Really Care, Beware!
- The Not-So-Obvious Reasons that Estate, Trust, Conservatorship, and Guardianship Related Disputes Are Going to Explode in Number in the Future
- Should You Tell Your Children About Your Wealth & Estate Plan?
- Concern Over Spoiling Your Children
- A 2014 Handwritten Will of the “Queen of Soul,” Aretha Franklin, Declared Valid by Jury
- (Video) What is Estate Planning?
- (Video) What Everyone Needs in Order to Create an Estate Plan
- (Video) Letter of Instructions
- (Video) You Should Review Your Estate Plan About Every 3 Years
- (Video) How Assets Pass at Death
What is Estate Planning?
What Everyone Needs in Order to Complete an Estate Plan