Clients frequently ask “Is it necessary to have an estate plan?”  Although each situation varies, three things should be considered: (1) do you wish to control to whom your assets pass at death?; (2) do you wish to designate who should oversee the handling of such assets?; and (3) do you wish to minimize estate, inheritance and income taxes for your beneficiaries?

If you answered “yes” to the questions above, it is wise to develop an estate plan.  A typical estate plan typically consists of three things: a Last Will and Testament, a durable power of attorney, and a healthcare power or healthcare proxy (aka a “living will”). 

Upon death, assets often pass outside of the estate, pursuant to a contract such as life insurance, a 401(k) or other retirement plan, or a transfer by death registration(POD).  Other assets, such as joint bank accounts and assets of a trust, also pass outside of the probate process.  Assets of the estate usually encompass real or personal property, stocks and bonds, and certificates of deposit which are held in the name of the decedent only.  These estate assets pass to your heirs via the probate process in the state in which the decedent resided at death.  It is of the upmost importance that, when consulting your attorney, you understand what assets will pass via probate upon your death.

A Last Will and Testament provides how, and to whom, your estate assets pass.  When discussing your Will with you attorney, it is important to discuss each and every one of your assets, how they are owned (jointly or individually), and what designation you wish to make upon your death.  It is also important that you regularly review your Will to ensure that your wishes have not changed, or assets do not need to be updated; this ensures a smoother process when probate begins.  If a major life event occurs after you have made your Will, such as a change in residency, receipt of an inheritance, a health issue, change in wealth or family circumstances, etc., it is important you discuss these with your attorney, as they could affect your estate plan.

While a Last Will and Testament is something that becomes effective only upon your death, a durable power of attorney and a healthcare power, aka a living will, are planning documents which are of use during your lifetime.  A durable power of attorney allows you to designate whom you would like to make financial and everyday decisions, in the event you become incompetent to do so.  A healthcare power, or a living will, allows you to a designate a person or persons who will have the power to make medical decisions on your behalf, should you become incapacitated.  These documents are relatively simple, but grant broad powers, and should not be taken lightly.

It is important to keep your estate documents together in a safe and secure place, along with any other financial or property documents your loved ones may need in case of an emergency.  Often, your attorney will offer a secure storage method to keep these documents, if you wish to do so.

While this is a condensed comprehensive summary, hopefully it is evident that creating an estate plan is not a “do it yourself” project.  It is important that you engage professional advisors to assist you in such matters, which will give you peace of mind, and provide for an orderly disposition of your assets upon death.