Estate Planning: What to Think About Before Meeting Your Lawyer

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In my estate planning office, it is not uncommon to meet a new client who wants an estate plan prepared, but it is a bit vague to know what should be included in this plan. Very often, the initial conversation begins with the client saying something like, "I would like a will … or should I have a trust, do I need something else?" In fact, these are good questions to start a discussion.

Most people recognize that their estate plan should provide for the distribution of their assets upon their death. Of course, this is an essential part of an estate plan, but more is needed in a well-designed plan. Before meeting your lawyer for the first time, you should also think about issues such as the people you want to manage, if you become disabled; if you want your doctor to keep you alive if you are about to die with little chance of being cured; who you want to have the power to sign important legal documents for you if you are not available; and who would you like to raise your children if you die suddenly? There is a wide variety of personal circumstances that affect estate planning, but let me introduce the following elements that you should consider before you even meet with a lawyer to discuss your own estate plan.

Should I have a will or a trust?

This is typically one of the first questions asked by customers at a first meeting. Many are aware that trust will avoid probate, but this is only true if trust is properly fundedwhich means that all their assets are transferred to the trust. However, not all estate plans need a trust and you may not have to assume the additional costs of preparing a trust by your lawyer, where a will is appropriate to your needs. And contrary to what some people think, having confidence do not avoid property taxes.

A trust may be the right choice for you, so it is unlikely that you will acquire more assets in the coming years. However, what can often happen is that people have an established trust and then acquire new assets that they neglect to put into the trust. Then, when they die, the assets outside the trust must go through a probate process, which contradicts the intention of establishing a trust. Therefore, before choosing a trust as the main component of your own estate plan, take the time to consider your future investment plans and major acquisitions.

A trust has other advantages, making it the right choice for you. For example, in the event of incapacity, your trustee will be able to intervene and manage your assets without having to resort to a court appointed custodian. In this sense, a trust document is more complete and flexible than an ordinary one.

What should I consider in my estate plan?

Estate planning is not just about who gets your fortune after your death. It's also about deciding what you want to do if you become seriously ill or incapacitated.

Each estate plan should include a prior directive, which was formerly called a living will. This document allows you to appoint a health care representative to make health care decisions for you, including end-of-life decisions, when you are unable to do so.

Similarly, we recommend that you provide a trusted power of attorney to a family member or trusted friend to allow your nominee to manage your financial and business affairs in the event of unavailability or incapacity on your part. A durable power of attorney remains in effect as long as you are alive and should predict its effectiveness even in the event of incapacity.

What about my bank accounts, life insurance and investment accounts?

Careful estate planning should include a review of all your assets, including verification of the beneficiary designations you have listed in your retirement plan and your investment and bank accounts. With these beneficiary designations, these assets will be transferred outside the probate process to the people you previously designated as beneficiaries on those accounts. It is important that you review the designations of your beneficiaries to ensure that your choice of beneficiaries is consistent with your current intentions regarding the disposition of your estate.

An in-depth review of your portfolio and consideration of the issues described above before meeting with your estate planning lawyer will help you make the most of your meeting. It will also help your lawyer focus on what aspects of the process are most relevant to your goals and needs.

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