Basic documents everyone should have:
People who you list as "who to call in an emergency" should know where you keep these documents.
- Will - How to disburse property to heirs after your death.
If you have a simple estate you can do it yourself using one of the online services (see below).
More complicated wills require an estate planning attorney.
There are rules for inheriting IRAs you need to be aware of/
- Living Will / Advanced Medical Directives, Instructive Directive (NJ) - Types of medical treatment you would like or not like in certain situations.
You can do it yourself.
You will need two witnesses and/or a notary republic to witness your signature.
The attorney who prepared my living will also signed it. It varies by state.
Living Wills: State Laws - FindLaw
Download Your State's Advance Directives - CaringInfo
- Durable power of attorney (POA):
A power of attorney is a legal document that gives someone (designated attorney-in-fact) you choose the power to act in your place. There are usually two:
a. Health care (Proxy Directive in NJ)
A Durable Power of Attorney can make it very broad (General Power of Attorney) or can limit the Durable Power of Attorney to certain acts (Limited Power of Attorney)
Any competent person 18 years of age and older can serve as an Attorney-in-Fact. Certain financial institutions can also serve.
In most states, your signature on your power of attorney must be notarized, or at least two adults, unrelated to you and each other, and who are not named as the attorney-in-fact, must witness you sign the power of attorney.
The person(s) you are naming as Attorney-in-Fact must sign also acknowledging they have read it and agree.
Some recommend sending a copy to financial institutions where you have accounts.
At ElderLawAnswers they say,
"There are many do-it-yourself power of attorney forms available; however, it is a good idea to have an attorney draft the form for you. There are many issues to consider and one size does not fit all."
2 and 3a are combined in some states. In California, it's called an advance health care directive.
Robert Wood Johnson Hospital in New Jersey calls it an Advance Directive.
I have 4 documents done in 1997 in New Jersey; A will, A Living Will, Durable Powers of Attorney for Health Care, & Durable Power of Attorney.
See How to Use a Durable Power of Attorney
- Living trust (also known as a revocable or inter vivos
The primary function is typically to avoid probate, which will vary by state. It was not necessary in New Jersey but is recommended in California.
You can and and remove assets in a trust as needed.
Probate can take a long time and the living trust provides for a quicker, transfer of property to those who need it.
- Letter of instruction - A letter of instruction (also called a testamentary letter or side letter) is an informal, nonlegal document that
generally accompanies your will and is used to
express your personal thoughts and directions
regarding what is in the will (or about other things,
such as your burial wishes or where to locate other
Where to store your documents:
If you get an attorney to do your will and powers of attorney, they may create two signed copies and keep one, while you will get the other.
Options for storage are:
- Safe deposit box - Be aware that some states require a court order to open a safe deposit box after a death, so if you use one you should have a joint owner who can get access.
- At Home - If you decide to store the original copy of your will in your home, an option would be to store it in a waterproof and fireproof safe (ideally, the safe would be large and heavy or built into the structure of the home to help prevent thieves from taking the actual safe).
Where to get your documents prepared:
If you have a complicated estate you should get an estate planning attorney to do it for you.
For simple estates there are several online sources. Rocket Lawyer was listed as best or one of the best in a small sample of review sites I looked at.
Legal Zoom. A little more expensive than most.
Quicken Will Maker (NOLO)
Others: LegacyWriter, Do It Yourself Documents - Free Generic Last Will & Testament, Suze Orman's Will and Trust Kit, Willing
If you have a complicated estate in excess of $1 million with things like a blended family, income property, IRAs, stocks, etc. a will can cost several thousand dollars.
Putting Online Wills to the Test - WSJ
Wills 2016 - Reviewed and Ranked
The Best Software for Wills in 2016 | Top Ten Reviews
If your estate is several million dollars or more you may need more complicated directions to minimize estate taxes (Federal and State) or handle special situations like splitting assets with children from a previous marriage.
This is usually done with trusts:
Trusts can be set up under the couples' Last Will and Testaments or as revocable Living Trusts.
With an irrevocable trust once you set it up it cannot be changed.
An revocable trust can be changed after it is set up.
- AB Trusts: (aka bypass trust, family trust, credit shelter trust)
A common Revocable Living Trust for married couples.
these trusts have two major functions:
(1) to keep your estate out of probate during
your lifetime and at death.
(2) to guarantee the use of both spouse's federal estate tax exemptions.
One of the benefits of the AB trust is that it prevents the surviving spouse from changing the beneficiaries of the deceased spouse's trust
When the 1st spouse dies, the marital trust is divided into 2 trusts, Trust A and Trust B.
Trust B (Credit Shelter or Bypass Trust) holds an amount equal to the federal estate tax exemption.
The surviving spouse named as life beneficiary of the trust while the principal is held in Trust B for the deceased spouse's beneficiaries.
Any remaining assets are placed in Trust A (Survivor Trust). Since Trust A is considered a marital deduction trust for the benefit of the surviving spouse, any assets put there are tax exempt.
Note: Some explanations reverse the labels A and B.
an AB trust has some significant costs--and if you don't need to avoid taxes, they probably aren't worth it.
See AB Living Trusts and AB Disclaimer Trusts | ThisMatter.com
- AB disclaimer trust
Allows the surviving spouse to disclaim any property that is to go into Trust A, causing the property to go to an alternate beneficiary.
Important Note! The American Taxpayer Relief Act of 2012 has added an exemption portability, which allows the decedent to leave any unused estate or gift tax exemption (referred to as the deceased spousal unused exclusion, or DSUE) to a surviving spouse, thereby eliminating the primary purpose for an AB living trust or AB disclaimer trust. The executor of the decedent spouse must make the election on Form 706,. However, the surviving spouse can only use the DSUE of her last deceased spouse. The AB trust still has certain advantages over choosing the portability option, in that the AB trust will still be able to use the exemption of the deceased spouse even if the spouse remarries, the trust assets will go to the decedent's chosen beneficiaries, and the assets in the trust can appreciate in value without adding to the estate value of the surviving spouse.
Consider the possibilities of the couple with property worth more than the estate tax exemption but less than twice the tax exemption. Without the use of a trust, the deceased spouse can leave all of his property to either:
- Qualified Terminal Interest Property (QTIP) Trust
This type of trust is commonly used by individuals who have children from another marriage. QTIPs enable the grantor to look after his current spouse and ensure that the assets from the trust are then passed on to beneficiaries of his choice.
- Charitable Remainder Trust (CRT)
A charitable remainder trust (CRT) is an irrevocable trust that generates a potential income stream (annuity) for you, as the donor to the CRT, or other beneficiaries, with the remainder of the donated assets going to your favorite charity or charities.
A partial income tax deduction is based on the type of trust, the term of the trust, the projected income payments.
At the end of the specified lifetime or term for the income interest, the remaining trust assets are distributed to one or more charitable remainder beneficiaries.
- Charitable Lead Trust (CLT)
A CLT is an irrevocable trust, created during life or at death, that gives a fixed amount or percent of trust assets to a charity. The remainder interest is either retained by the donor or given to a non-charitable beneficiary, usually a family member.
It is a separately invested trust created by transferring cash, marketable securities, or income-producing property to a trustee.
A charitable lead unitrust pays an annual income equal to a percentage of the value of the principal, as valued annually. The percentage payout is selected when the trust is created.
A charitable lead annuity trust pays a fixed amount annually to charity. The fixed dollar amount is specified when the trust is established.
There are also grantor and non-grantor CLTs. Which is beyond the scope of this summary.
Charitable lead trusts are designed to provide income payments to at least one qualified charitable organization for a period measured by a fixed term of years, the lives of one or more individuals, or a combination of the two; after which, trust assets are paid to either the grantor or to one or more noncharitable beneficiaries named in the trust instrument.
The value of the interest committed to charity is subtracted from the fair market value of the property at the time it is transferred to the charitable lead trust, thereby reducing the taxable amount.
See Charitable Lead Trust | Planned Giving Design Center
Some potential issues:
Keep your beneficiaries up to date. They override trusts and wills.
Retirement accounts and insurance policies are governed by the beneficiary form you filled out when you opened the account or bought the policy. These assets do not flow through your trust or your will.
You could be giving your kids too much too soon. But with many trusts, by the time you find that out it is too late to make any changes.
You should consider delaying larger portions of their children's inheritance, giving them more when they are older and allowing the trustee to have more discretion in distributing their money should they need it sooner.
In 2016 the federal estate tax exemption was $5,450,000.
Trump wants to repeal the federal estate tax, while Hillary Clinton wants to lower the exemption to $3.5 million.
See more on estate taxes in the estate planning page.
Plan Your Estate: Denis Clifford:
Wills, Estates, and Trusts - Table of Contents | ThisMatters.com
Intestacy, Wills, Trusts, Estates, and Probate--Overview | ThisMatter.com
AB Living Trusts and AB Disclaimer Trusts
Legal Documents Checklist
Key Legal Documents Documents You Need
last updated 1 Aug 2016