OTHER ESTATE PLANNING DOCUMENTS
AND TECHNIQUES

In addition to wills and living trusts, various other documents may be used to carry out your wishes, either in case of death or in case of illness or accident.  Methods are also available for giving family members an opportunity to learn management of a family business before the business is sold or given to them.  Management rights may also be given for limited periods of time in order to free the actual owners for a long-awaited vacation.  The following documents are commonly used to accomplish these types of life and estate planning goals.

Powers of Attorney

Powers of attorney give another person the power to act in place of the principal or the person giving the power of attorney.  The power of attorney can be drafted so that it would only become effective upon the disability or incapacity of the principal, or so that it is immediately effective.  However, powers of attorney which only become effective upon incapacity may create issues in determining when incapacity occurs.

The power of attorney allows someone else to handle affairs such as payment of bills, cashing  checks, and selling assets.  A specific power of attorney may be drafted which grants only very specific, limited powers to the person named as agent (the person given power to act for the principal).  This could include the power to manage a particular piece of real estate, or a particular account, investment or business.

A power of attorney will terminate upon the disability or incapacity of the principal unless the power of attorney is durable, specifically stating that it will remain effective after the disability or incapacity of the principal.   Powers of attorney terminate upon death, so are not effective to manage or transfer assets after the principal’s death.  Contact us regarding POA's.

Recent trends, however, are showing that more and more commercial businesses are not accepting powers of attorney.  Oftentimes the discovery of non-acceptance is made once it is too late.

Living Wills/Durable Powers of Attorney for Health Care

Living wills and durable powers of attorney for health care contain directions regarding prolonging life by artificial means if the condition is terminal.  These documents provide family members or others appointed by the document with authority to make medical decisions for you if you are unable to do so.  Contact us if you have additional questions.

Transfer on Death / Payable on Death Designations

Certain assets can be transferred upon the death of an individual merely by providing this request on the account ownership documents.  Bank and credit union accounts can have a designation “Payable on Death” added to them and stock accounts or accounts managed by financial advisors usually can have a “Transfer on Death” designation.  An account with such designation can be transferred to the named beneficiary with the completion of a few simple forms and a death certificate.  Contact us for questions on POD or TOD issues.

Trusts

Various types of trust arrangements may be very beneficial, and can be individually suited to meet a specific need or desire.  Trusts are very commonly used when minor children or other dependents are involved, when a business exists which will need continued management, to effectuate tax planning and to avoid or minimize probate.

Living trusts come into being during lifetime, whereas testamentary trusts only come into being upon death.  Testamentary trusts do not avoid probate, but are effective method of providing for management of assets for beneficiaries, and for tax planning.  Contact us for help in creating a Trust.

Prenuptial/Antenuptial/Marital/Community Property Agreements

It is important for all married couples to understand the impact of their state law on their estate.  If you reside in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) you share ownership of property with your spouse regardless of whose name is on an asset.  In common law states, the name of the title of property affects ownership rights more completely.  However, both community and common law states have rules protecting spousal interests in property.  If the effect of your state law is not beneficial for you, you and your spouse may adapt its effect by written agreement.  Various types of documents are available, depending upon the individual circumstances and upon whether both spouses are capable and willing to sign an agreement.

If a specific need or concern exists regarding spousal property interests, a solution can usually be found.  The law is very flexible for those who plan a head.   Problems arise after incompetency or death has occurred, when the party involved is no longer able to express his/her wishes.  An estate planning attorney can be very helpful in sitting down with you to analyze your situation and to suggest methods of preventing future problems.  Contact us if you have questions concerning marital property agreements.