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Estate Planning and the Military: What you Need to Know

Being responsible for your family includes planning for their care if something were to happen to you, whether it be a debilitating injury or death. This is even more important for those in the military who face the ever looming prospect of overseas deployments, combat or even risky training environments that can include jumping out of perfectly good airplanes. The military profession is one that is rife with hazards to life and limb, making it that much more important for service members to have an estate plan in place to protect their families.

Fortunately, the military provides free legal services to those in its ranks and their family members, which includes estate planning assistance. This article will provide an overview of military estate planning services as well as their limitations.

What Does the Military Offer?

The military provides a variety of estate planning services which can include legal advice as well as the actual preparation of legal documents. Typically, you can expect a military lawyer to provide support with:

  • Powers of Attorney for financial matters (limited and general) and health care decisions
  • Living Wills
  • Funeral and burial arrangements
  • Organ donation
  • Wills
  • Trusts (simple)
  • Family care plans
  • Life insurance (SGLI)
  • Survivor benefits
  • Estate taxes
  • Estate administration/probate (although military lawyers are unable to represent you in court)

If you're meeting with a military lawyer, be prepared to complete forms asking about your family and assets as this helps the attorney to timely craft an estate plan that works for you.

Limitations of the Military Estate Plan

There are likely two ways in which you'll encounter military estate planning services. You'll either set up an appointment with your local legal assistance office or you'll be rushing through a series of stations as part of the pre-mobilization or pre-deployment process. The round robin routine will usually include a legal station which provides estate planning support, although at a quick pace. Military lawyers, particularly those involved in preparing service members for mobilization or deployment, have limited time and resources, making it difficult to prepare more complex estate plans.

Setting up Trusts

While you can expect competent legal counsel from a military law attorney, if you have a more complex financial or family situation, using military estate planning services may not be the best solution. For example, if your assets would approach the lifetime gift tax exemption (the amount you can gift in your lifetime without having to pay taxes, which is 5.43 million as of 2015), or if you have family members with special needs, you would likely require the creation of one or more trusts to help you:

  • Avoid federal or state estate taxes
  • Avoid probate (by removing assets held in your name at your death)
  • Provide adequate support for special needs family members while ensuring their continued eligibility for needs-based assistance

While a military lawyer may be able to create simple trusts, he or she may not have the time or resources to create the trusts needed to address a complex financial or family situation, like those listed above. Also, given their time and resource limitations, a military lawyer would not likely be able to fund your trust by preparing the instruments needed to transfer assets out of your name and into your trust. These would include such things as:

  • Property deeds and any accompanying change of ownership forms to avoid reassessments
  • Forms to change account titles on bank accounts or investment accounts
  • Forms to re-issue stock certificates so they are titled in your trust and not your name

All of these transfers are needed to ensure that your assets are titled in your trust and not in your individual name and all of which require follow up with a county recorder, financial institution or corporation, something a military lawyer would not likely be able to do. If you do create a trust with a military lawyer, he or she will probably direct you to transfer your assets on your own.

Other Options to Avoid Probate

If your goal is to avoid probate and you have some investments or real property, you could have a military lawyer prepare your estate plan without a trust and simply change title to your assets in a way that would avoid the probate process. For example, real property held as "joint tenancy" normally will not trigger probate as the property automatically passes to the remaining joint tenant at your death. Also, accounts that are titled as "payable on death" normally have the same effect. You can ask your military lawyer to see whether these options would work for you.

Additional Resources

If you would like to speak with a military lawyer regarding your estate plan, you can find a military legal assistance office near you using the Legal Services Locator. If you believe your financial or family situation is more complex, you should consider speaking with a civilian estate planning attorney, who can spend the time to adequately review your situation, tailor your estate plan, prepare necessary documents and follow up to ensure that your trust is properly funded. 

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