Martinsville Estate Planning Lawyers
Having An Estate Plan Is Essential
An estate attorney is probably the last attorney you will ever need, but you can’t predict exactly when you will need them. This precisely why it is a good idea to make an estate plan ahead of time, so that if something does happen you are prepared.
According to a survey conducted by Harris Interactive, only 39% of adult Americans have a Will in place, only 29% of adult Americans have a Power of Attorney in place, and only 18% of adult Americans have a Trust in place.
It is never too early to start your estate plan, but often times it is too late. Many people assume your estate plan only consists only of your “Will” more formally known as the “Last Will and Testament” or “Last Will,” but for most individuals the Last Will is simply one of four main documents needed in order to form a proper estate plan.
Those documents are as follows:
1. Durable Power of Attorney
2. Healthcare Power of Attorney
3. Living Will
4. The Last Will and Testament
These four documents will sufficiently cover a majority of individuals in the event something would happen to them regardless of whether that incident is minor or major.
Powers of Attorney
A Durable Power of Attorney will help someone else take care of your business matters such as paying bills, managing investments, controlling finances, managing retirement plans, etc. whereas a Healthcare Power of Attorney will allow an individual to take care of your healthcare decisions and issues related thereto. These documents need to be created before you become incapacitated so that your family can avoid filing an action for guardianship. Proper planning also gives you the ability to choose the individual making important decisions about your well-being.
The Living Will deals specifically with end of life decisions. It comes into effect in the event an individual has an incurable injury, disease, or illness and the use of life-prolonging procedures would only artificially prolong the dying process. This document allows you to elect whether you would like to be kept alive artificially in the event death is imminent. This document takes the decision out of your family members’ hands, alleviating stress from your family and ensuring the right decision has been made by you before that time arises.
The Last Will and Testament
This is the last document in a basic estate plan and the one most people are somewhat familiar with, but many people do not know the complexities set forth in a Last Will. In addition to indicating how you would like to dispose of your property, including specific and general devises, you also elect a personal representative to carry out the probate process, decide whether the estate administration should be supervised, and choose the guardian of your children. Each Last Will greatly varies and can include future born children clauses, exclusion clauses, disinheritance clauses, and most importantly testamentary trusts. Testamentary trusts are trusts created upon the death of the individual and help limit beneficiaries from squandering inheritance by narrowing what the beneficiaries can spend until certain requirements are met. These testamentary trusts can be created to match your and your beneficiaries’ individual needs.
Most people equate trusts with extraordinarily wealthy individuals trying to protect assets, but never realize that a trust could benefit them as well. There are many types of trusts available in today’s world that can help you plan out your estate accordingly. The most common trust is a Revocable Living Trust. A Revocable Living Trust allows an individual to determine who will get their property when they die much like a last will and testament, but unlike a last will, allows an individual to avoid the probate process. Avoiding probate can save time, money, and allows you to keep your documents private after death. A living trust does not allow you to name guardians for children, name an executor, or instruct how debts or taxes should be paid. It also requires that an individual properly transfers their personal and/or real property into said trust during the creator’s (also known as a settlor) lifetime. There are many variations of trust outside of the revocable living trust, including the following:
• Irrevocable Trust
• Asset Protection Trust
• Charitable Remainder Trust
• Special Needs Trust
• Spendthrift Trust
If an individual becomes incapacitated without a power of attorney, then the person’s caretaker will be required to Petition the Court for a guardianship. These can be either temporary or permanent depending on the circumstances. Unfortunately, the most common guardianships our firm sees are over minor child. If one or both parents of a minor child abandon, become incapacitated, or become incarcerated, then the grandparent/relative/caretaker is often required to apply for a guardianship through the court system.
After the passing of a loved one, the law requires that the designated personal representative follow the probate process to transfer assets and pay debts of the decedent. This process can be simple or complex depending on the circumstances surrounding the case. This often depends on whether the person died with a will (“testate”) or without a will (“intestate”). Our attorneys are familiar with the probate process, experienced in administering of estates, and can help you navigate the law in order to follow proper procedure. Given our background in litigation, we can also help with will contests (beneficiaries have conflicting opinions as to the validity of a will) and contested claims (beneficiaries have conflicting opinions about distribution of the estate or the validity of claim by a debtor).
We can help you with Wills, Trusts, Probate, Estates, Guardianships, Powers of Attorney and more.
The worst time to review an estate plan (and unfortunately the most common) is after having an incident, so it is imperative that your documents stay up to date as your life changes. Often younger families need more complicated estate plans with testamentary trusts which become simpler as those children grow up. We recommend you evaluate your estate plan with your attorney every three years or at any major life-changing event (e.g. divorce or a death in the immediate family). If you would like to discuss any or all of the foregoing or have any questions about the estate planning process, please contact us.
MARTINSVILLE ESTATE PLANNING ATTORNEY
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Offices In Indianapolis/Carmel, Martinsville, Terre Haute, Kokomo, Lebanon & New Castle serving the state of Indiana.
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