How to Do Estate Planning

As we age, many of us become infirm and experience loss of perception and memory. Although these circumstances are common, they challenge our friends and members of our families, and frequently result in a stressful environment that complicates the resolution of the underlying difficulties. Legal issues may arise. Ready resolution of these problems is complicated by at least two factors: first, seniors' children are often their caregivers, as well as their heirs; second, the services of attorneys and other professionals with experience in managing and disposing of seniors' assets can be essential.

In these circumstances, family members may try to avoid dealing with—or even recognizing--seniors' declining abilities, increasing health issues, and such intensely private and personal subjects as financial matters. Consequently, family members describe these inevitable aging issues as the most difficult, expensive and contentious they've ever encountered, and would recommend to others that honest discussions occur to surface the legal and social issues that become increasingly important as the aging process continues.

Many caregivers and family members realize that professional assistance is appropriate to assist in resolving seniors' aging issues, and look to seasoned attorneys and other professionals for guidance. Although initially they may seek recommendations for legal counsel from family and friends, they may eventually turn to advertising media to assist them in their search.

There are numerous Internet sites that help prospective customers find attorneys, including these websites: www.LegalMatch.com; www.lawyers.com; www.lawyers.findlaw.com; www.Lawyers-Attorneys-USA.com. These sites may be accessed by using search engines with "Attorneys + (Location, that is, the geographic location of interest, such as 'Pendleton Oregon') in the subject line. One of the most respected resources, the Martindale-Hubble legal directory, can be found on the Internet at www.martindale.com. The Martindale resource includes an easy-to-use search engine to find attorneys by jurisdiction, locality, areas of specialization and much more.

Just as laws vary from state to state--and even between cities and counties in the same state--some attorneys choose to concentrate their practice in a particular area of the law. The State Bar of California, for example, offers the state's lawyers the opportunity to become certified in 11 areas of law practice, including Admiralty and Maritime Law; Appellate Law; Bankruptcy Law; and Estate Planning, Trust and Probate Law. Because attorneys choose to concentrate their practices in certain areas of the law, it is possible that an attorney who is a certified specialist in the field of "Estate Planning, Trust and Probate Law" deserves consideration.

Whether or not senior caregivers or family members elect to proceed with an attorney, several alternatives can be successfully employed to manage seniors' end-of-life affairs.
Here are some of them:

Power of Attorney. The "power of attorney" enables a family member or a trusted friend of the senior to act on the senior's behalf, thereby gaining access to bank accounts and other assets as funds are need for the senior's care, as well as the legal right to sign documents and handle insurance and other matters that arise over time. Because individual states have differing requirements and procedures for obtaining the power of attorney, it is prudent to seek counsel from an attorney who is licensed in the subject state, or seek assistance from AARP or the local state bar association. Other resources are the National Academy of Elder Law Attorneys (NAELLA), at www.naela.org, or the American Academy of Estate Planning Attorneys, www.estateplanforyou.com.

Living Wills. There are occasions when a service provider, often during a medical visit, a meeting with an attorney or an accountant--even while flying on an international air carrier--inquires whether an individual has a "living will." A "living" will, although not a will in the traditional sense because it doesn't dispose of property during a person's lifetime, is nonetheless a binding legal instrument, the purpose of which is to document a person's wishes regarding the potential use of life-sustaining treatment in the event that he or she becomes terminally ill or permanently unconscious and thereby unable to communicate these instructions to a potential caregiver. Family members may use a doctor's visit as a vehicle to discuss a senior's interest in a living will, or even as a tool to initiate a conversation about long-term care preferences, disposition of assets, and other end-of-life matters.

Advance Directive, also sometimes referred to as Medical Durable Power of Attorney. The advance directive is similar to, but more flexible than, a living will. Living wills are customarily used in a deathbed situation, while an advance directive can be used to manage a patient’s healthcare even when death is not imminent. This document enables seniors to advise their caregivers and family members of their preferences for care if, for example, they become afflicted with Alzheimer’s disease, or if they want to prohibit insertion of a feeding tube that would otherwise prolong their life.

A word of caution is advisable at this point. Professional advice from a reputable attorney is often appropriate in these instances. The use of legal documents purchased fro an office supply store or on the Internet is extremely risky: the documents may be too generic or may fail to comply with the legal requirements of a particular state or local community. Conversely, for a reasonable fee, most general practice attorneys will draft these documents that will meet the necessary standards.

Last Will and Testament. The last will and testament is a legal document that a person (legally known as the "testator") uses to govern the disposition of his or her assets following death. The will may also create a trust--a "testamentary trust"--hat takes effect only after the death of the testator. Any person over the age of majority and of sound mind can draft his or her own will without the aid of an attorney. Additional requirements vary by state, but generally include the following:

•The testator must be identified as the maker of the will, and that he or she intends to make a will by the use of the document. The use of the language "last will and testament" satisfies these requirements.

•The testator must declare that he or she "revokes all previous wills and codicils." Failure to do so revokes only the provisions of previous documents that are inconsistent with the current will.

•The testator has to demonstrate that he or she has the capacity to dispose of the property included in the document, and does so freely and willingly.

•The testator must sign and date the will at the end of the docuent, usually in the presence of at least two witnesses who are not beneficiaries of the will.

Although there is no requirement that a licensed attorney has to draft a will, it is a preferable way to ensure that the testator's wishes will be effected. A typical error in so-called "homemade" wills is the use of a beneficiary, a spouse or a family member, as a witness to the will, which operates to disinherit that person, and frustrates the testator's intent.

Probate Proceedings. Following the testator's death, probate proceedings are initiated to determine whether the will is legally valid and to appoint an executor to assume responsibiliy for settling the testator's accounts and disposing of the assets included in the "estate." An "estate" consists of all property that the testator owns at the time of death, and includes real estate; bank accounts; stocks and other securities; life insurance policies; and personal property, such as automobiles, jewelry, and artwork.

Estate Planning. Estate planning is a way to ensure that a person's property, healthcare and intentions are honored, and a comprehensive estate plan can effectively resolve various legal questions that may arise after people die. Here are some of them: What is the state of the testator's legal affairs? Do they own any real or personal property? How should it be disposed and to whom? Is there a need for a personal guardian to be appointed to care for the testator's minor children? What are the tax liabilities on the estate? What funeral arrangements are appropriate?

An estate plan can accomplish the following objectives:

•Identifying family members and others whom the testator wishes to receive particular items of property after death;

•Ensuring that this property will be transferred consistent with the testator's wishes, as quickly and with as few legal hurdles as possible;

•Minimizing the amount of taxes to be paid in order for the property to be appropriately distributed;

•Avoiding the time and costs associated with the probate process by utilizing such estate planning devices as living trusts;
•Prescribing the type of life-prolonging medical care that the testator wishes to receive, if unable to express these preferences;

•Detailing how expenses are to be paid; and

•Describing preferred funeral arrangements.

Choosing from among the various estate planning alternatives that are available can be difficult. Fortunately, there are Internet resources that provide useful guidance. These include www.ameriprise.com, www.estate.findlaw.com/estate-planning. FindLaw's estate planning center is a particularly comprehensive way to identify estate planning needs, recognize potential solutions, and locate an estate planning attorney to facilitate the process.

The essential foundation of an estate plan is the identification of principal objectives. Following is a list of typical estate planning goals and strategies for accomplishing them:

Providing for the testator's immediate family. Husbands and wives want to make sure that there are sufficient resources for the surviving spouse, which often requires an income stream provided by life insurance. Couples with children want to assure that funds are available for their education and upbringing. For those with children under age 18, the couple should have a provision nominating personal guardian(s) for the children in their wills; absent this provision, a court will be without direction as it makes decisions about minor children's welfare.

Providing for other relatives needing help. Testators who have family members whose lives can be difficult in their absence--an elderly parent or a disabled child, for example--should consider establishing a special trust fund to provide necessary support.

Getting assets to beneficiaries quickly. Testators want their beneficiaries to have access to the assets that have been bequeathed to them. Strategies include insurance proceeds paid directly to beneficiaries; joint tenancies; living trusts; and other means that will use simplified or expedited probate that is available in many states.

Planning for incapacity. One component of many estate planning processes is planning for possible mental or physical incapacity, which is especially important for single people. Living wills and durable health-care powers of attorney enable testators to decide in advance about life support options and selection of a personal guardian to make decisions about end-of-life medical treatment. Moreover, disability insurance can provide protection for testators and their families should the testator becomes disabled and unable to work.

Minimizing expenses. Everyone wants to minimize the costs of transferring assets to their beneficiaries and good estate planning can reduce these expenses significantly.

Selecting competent executors/trustees and giving them the necessary authority saves money, reduces the burden on the testator's survivors, simplifies the administration of the estate, and can reduce the probate court's involvement.

Easing the strain on the testator's family. Estate planning provides an opportunity for the testator to plan for their funeral arrangements, reduce the costs of burial, or select cremation or other options.

Helping a favorite cause. An estate plan can direct financial support for religious, educational, and other charitable causes, either during or after the testator's lifetime, while taking advantage of tax laws that encourage private philanthropy.

Reducing estate taxes. A good estate plan will deliver the maximum assets to the testator's beneficiaries and the minimum to the government, an especially important goal as the estate approaches one million dollars in value, the figure that currently triggers the federal estate tax.

Ensuring that the testator's business will continue after death. A small business can be thrown into chaos upon a principal's death or incapacity. The estate plan can direct its succession and continuation of its activities.