Estate Planning: Answers to Common Questions

In this FindLaw article, you will find questions and answers relating to common estate planning tools. These common estate planning questions provide insight into important estate planning documents and tools. These include:

• A last will and testament
• A revocable living trust
• Advanced directives

Below are several frequently asked questions and answers concerning basic estate planning, including:

• What does 'intestate' mean?
  
• Why have a will?
  
• What are some common elements in a will?
  
• What does an executor do?
  
• How do I avoid probate?
  
• What is the difference between probate property and non-probate property?
  
• What are death taxes?
  
• How does a power of attorney work?
  
• What is an advanced health care directive?
  

What does 'intestate' mean?

If you die without a will, you die intestate. Each state has "intestacy" laws that determine who will receive the property of intestate decedents. It is important to remember that these rules do not control non-probate property.

Why have a will?

This is one of the most common estate planning questions. There are many reasons why you would want a last will and testament. It allows you to designate how your affairs are handled after your death.

A will is a legal document that allows you to direct specific property to loved ones. Even those with little or no property will want to designate a guardian for minor children. A will can also be used to set up a special needs trust for an adult child with special needs. A will can accomplish all this and more.

What are some common elements in a will?

Here are some common elements found in most wills:

• Identification of family members: This can defeat claims by people claiming to be illegitimate children. It also can settle the status of adopted children or stepchildren.

• Tangible personal property: Household and personal effects are unique and serve as a link between generations. You can list who will inherit certain items, such as a particular piece of jewelry.

• General bequest: A bequest of $500.00 to each grandchild is a general bequest.

• Specific bequest: A bequest for the decedent's vacation house is an example of a specific bequest.

• Residue: The property left after distributing tangible, general, and specific bequests. For example, "Everything to my spouse, but if no spouse, then everything to my children."

• Minors and incompetents: It may be prudent to provide for the management of assets left to minors or incompetents. Without such a provision, the courts will manage the assets, which is expensive and inconvenient.

• Tax clause: Who pays the tax on the bequest of an amount to your grandchild? Does the grandchild pay for it? Does it come out of the residue?

• Fiduciary: The person or institution appointed to manage, invest, and distribute funds, such as the executor or trustee.

• Guardian: This person is appointed to care for minor children or incapacitated adult children should both parents be deceased.

• Informal settlement: Some states have informal settlement procedures that are faster and less expensive than the traditional probate process.

• Revocation clause: All wills should revoke any prior will.

What does an executor do?

Your executor is a fiduciary who is responsible for settling your estate. This means your executor will handle the following:

• Gathering your assets
• Paying your debts
• Paying your death taxes
• Making distributions to your beneficiaries

In the meantime, your executor must keep the property insured, decide what to sell, invest cash, obtain appraisals, and file income tax returns. This process can take one or two years.

Depending on the size of the estate, a small estate procedure may be available for modest estates. State law determines whether this process is available. If so, it determines the size limits for an estate to qualify for a small estate probate procedure.

How do I avoid probate?

The probate process can be time-consuming and expensive—many seek to avoid it. Here are some examples of ways to avoid probate:

• Lifetime revocable trust: Establishing and funding such a trust requires the transfer of all securities and other assets into a trust. At death, a "pour over" will can transfer any property not already there into the trust.

• Joint property: Joint property passes to the surviving joint owner as a matter of law.

• Life insurance and pension: These pass to the contract beneficiary.

What is the difference between probate property and non-probate property?

Your will controls probate property. Non-probate is not subject to probate. Some examples of non-probate property include: jointly held property, life insurance, and trusts. Non-probate property can be payable on death or subject to a beneficiary designation. Non-probate assets that can be subject to a beneficiary designation include the following:

• Retirement plans, including IRA retirement accounts
• Life insurance policies with a beneficiary
• Bank accounts with a payable on death or transfer on death order

When asset distribution occurs through a will in the probate court, they become a matter of public record. When a beneficiary receives non-probate assets, the asset transfer can occur without a public record. Thus, your heirs can maintain privacy regarding the transfer of non-probate assets.

What are death taxes?

At the time of your death, the assets you have accumulated during a lifetime of hard work are subject to tax. The federal and state governments where you are domiciled may impose taxes on transfers at death. Any real estate will be subject to tax at its location.

Tax law can be complicated. Failure to engage an estate planner can be incredibly costly for individuals with the highest net worth at death. It is wise to consult with an estate planning attorney familiar with state law, federal gift tax, and estate tax law.

An estate planning attorney can work with your financial advisors and tax professionals to ensure you know what tax exemptions, deductions, and credits may be available and what options are available to reduce estate taxes.

How does a power of attorney work?

The purpose of a power of attorney is to authorize someone else to act for you if you cannot act for yourself. A power of attorney can be extensive and cover almost any problem, from paying the bills to selling the house. A "durable" power of attorney means it remains effective if you become incompetent. For real estate transactions, the power of attorney must be recorded.

The person with a power of attorney is often called an "attorney-in-fact." The attorney-in-fact is a fiduciary bound to act in the principal's interest. The attorney-in-fact should keep complete and detailed records of all receipts and expenditures. The attorney-in-fact should also be able to explain to the principal what they have done.

You may revoke a power of attorney at any time by notifying the attorney-in-fact in writing. The revocation must also be recorded if a power of attorney has been recorded. The death of the principal terminates the power of attorney. Authority then passes to the decedent's executor. Our state-specific, easy-to-use power of attorney forms can help you get started.

What is an advanced health care directive?

No one wants to experience incapacity, but it brings peace of mind when you have advanced directives. The advance health care directive, also known as a living will, has two purposes. The first is to appoint someone else to make health care decisions for you if you cannot make such decisions for yourself.

The second purpose is to guide that person in making those decisions. You can find related information in FindLaw's section on Living Will Basics. We also offer living will forms that can help you lay out your wishes according to the laws in your state.

Estate planning can be complicated. It is wise to get legal advice and may require the assistance of an experienced estate planning attorney.