Friday, July 10, 2020
Watch this video by Stuart R. Morris, Esq., CPA, B.C.S., founding partner of Morris Law Group about the three core documents that are the basis for estate planning - a Will, a Revocable Trust and an Irrevocable Trust. For more information, visit www.law-morris.com or call (561) 750-3850.
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During these unprecedented times, as unpleasant as it is, people have been thinking more about estate planning and ensuring that their end-of-life healthcare wishes are followed. There are two legal documents that state your wishes as far as what end-of-life care you would like done and who makes those decisions if you are unable to: a living will and a designation of health care surrogate.
A Living Will Expresses Your Wishes
A living will, despite its name, does not deal with whom your property and assets will go. Instead, it states the type of healthcare you would like to receive toward the end of life. Some examples of what a living will includes are:
- your wishes regarding a feeding tube and artificial nutrition,
- whether you would like pain relief
- if and how long you would like to be on a ventilator and life support
- and other life-saving measures you may or may not want done.
You Designate the Decision-Maker
A health care surrogate is the person you designate to make health care decisions for you if you are no longer able to do so. Typically, this is a person’s spouse, but does not have to be. It is vitally important to have this document on file with your doctor and given to your surrogate.
An unmarried person who becomes incapacitated and does not have a health care surrogate becomes a ward of the state and the state makes the decisions, which may not be made in accordance with that person’s wishes. As such, it is critical to pick a person who agrees with your wishes and will execute them as you desire. For example, if you would like to have life support ended after two weeks of no improvement, but your surrogate does not agree with this perspective, he or she may not do what you wanted.
While a spouse is the obvious choice, if he or she has conflicting opinions on end-of-life care, it is better to pick another relative or close friend that agrees with your choices.
Everyone Over 18 Needs These Documents
These are documents that every adult needs to have in place, regardless of age. A life-changing accident or illness can happen to anyone at any time, and it is essential to have a plan enacted to ensure your wishes are followed. Another document called a HIPAA release authorizes the people you name to be able to talk to your doctor and receive information about your medical condition.
Parents, please note, if your children are headed off to college soon or leaving the nest, make sure they sign a living will and health care surrogate document before they go. Even though you may think of them as children, if they are over age 18, they are considered legal adults in the eyes of the law. In the event of your child suffering a critical injury or illness, you wouldn’t be able to make medical decisions or even speak to the doctor without these legal documents naming you as the health care surrogate.
A well-known example of a person not having these documents in place that resulted in many years of contentious litigation and the incapacitated person’s wishes not being followed is Terri Schiavo. You may recall this landmark case that attracted both “right to life” and “right to die” advocates. She did not have a living will or health care surrogate, and her husband and family had a long court battle over what they thought Terri would want.
Without a living will, doctors are compelled to keep you alive with heroic measures, including putting you on a respirator and feeding tube, doing CPR, using multiple drugs to maintain blood pressure and heart function, dialysis, amputation, other surgery and more. With a living will, you can specify if you want food or water to continue or be withheld, if you want experimental measures or even if you want to be kept alive for a certain amount of time so that your children living out of state have time to say goodbye.
Get Help from a Professional for Peace of Mind
These documents can be confusing. To make certain that they are filled out correctly and in accordance with your wishes, discussing it with you lawyer is by far the best option.
Morris Law Group is here to help you and your family members set up your living will and health care surrogate documents. Having them in place will give you peace of mind and will provide your loved ones with the guidance needed to make the decisions you would want if you are incapable of making them. For assistance with your advance directives, please contact us or give us a call today at (561) 750-3850.
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Estate planning is a complex process that entails a detailed evaluation of your goals, desires, potential income, taxes, asset protection and charitable planning, among many other considerations. It starts, however with three basic core techniques: your Last Will and Testament (Will), a Revocable Trust and an Irrevocable Trust.
A Will is the legal document where you can express your final wishes for the management of your estate. This includes the distribution of assets, guardianship for minor children and burial instructions. Without a properly executed Will, a person is deemed to die “intestate,” and his or her assets will be distributed according to the state’s intestacy laws. Although a Will can adequately provide for the distribution of assets upon your death, it does not sufficiently provide for your necessary care in the event you become incapacitated. It also must proceed through the costly and very public probate process after you pass. Once a Will is probated, it becomes a public record and can be viewed by any member of the public.
Trusts, on the other hand, would not be subject to probate and public recording. There are two main types of trusts: Revocable and Irrevocable trusts. They work as the names suggest, in that Revocable Trusts can be modified during your lifetime, and Irrevocable Trusts typically cannot be modified without the consent of the beneficiaries. This makes Irrevocable Trusts sound like an unwise choice, when in actuality, they are extremely useful for tax and estate planning purposes.
There are two basic types of Irrevocable Trusts: Inter Vivos and Testamentary. Inter Vivos Trusts are created when the Grantor is still alive, and Testamentary Trusts are created from the Grantor’s Will after he or she passes. While all Testamentary Trusts are Irrevocable, not all Inter Vivos Trusts are; the status of an Inter Vivos Trust is up to the Grantor.
Due to the fact that Irrevocable Trusts cannot be modified, anything in them is removed from the Grantor’s estate and therefore will not be subject to the estate tax. Therefore, it is important that they are set up correctly.
A classic example of a commonly used Irrevocable Trust is an Irrevocable Life Insurance Trust (ILIT). An ILIT is used to keep the value of a life insurance policy out of the owner’s estate. The policy is sold to the owner’s ILIT and the ILIT is the owner of the policy, safely removing it from the Grantor’s estate. It also makes the distribution of the policy upon the insured’s death go more quickly and smoothly. An ILIT also provides more creditor protection than merely distributing the proceeds of the policy directly. Additionally, it helps to prevent wealth transfer problems for the recipient of the proceeds.
Inter Vivos Irrevocable Trusts may also be used to give gifts to grandchildren with the proper tax planning. Giving a gift to someone two generations under you triggers the Generation Skipping Transfer Tax (GST Tax), which is currently 40 percent. The GST Tax has an exemption equal to the estate tax exemption. It is a complicated tax, making it imperative to set up this kind of trust properly. This will ensure the recipient of the gift receives the amount you actually want them to receive without them having a pay a high tax.
Revocable Trusts also have many uses in estate planning. They are commonly used as a way to avoid probate administration after death. Probate can be costly and takes time to sort out the affairs of the deceased person. A Revocable Trust sets out what the Grantor would like done with his or her property before death, ensuring a smoother administration. Another key advantage of using a Revocable Trust in the place of a Will is that Wills become public record after a person dies, whereas the provisions of a trust stay private. In order to make sure all of the Grantor’s bases are covered, a Revocable Trust should be accompanied by a Pourover Will. This type of Will states that any property not titled to the trust should be retitled to the trust. People often forget to retitle all of their assets to the trust or acquire new assets and do not think about it.
Revocable Trusts also remove the need for ancillary probate. This is required probate when the deceased person has real property in another state. By putting the real property into a Revocable Trust, there is no need for ancillary probate.
It is also a creative way to plan financially for incapacity. A Revocable Trust operates free from court interference, and, if set up while the Grantor still has “capacity,” the Grantor may choose Trustees who will serve in the event of incapacity. This is much more advantageous than the court appointing a guardian or conservator. Both are extremely expensive and, in the event that capacity returns, incredibly difficult to remove.
Morris Law Group’s experienced attorneys can help you plan for your future with the most effective estate planning techniques for you and your situation. It’s imperative not to postpone your estate planning. Without any form of estate plan in place, you are subject to the state’s intestacy laws that will dictate how your assets will be divided upon your death. In addition to the possibility of your assets being distributed to a relative you may dislike or hardly know, your family could be faced with significant tax and fiduciary issues.
Contact us today at (561) 750-3850 for more information about estate planning and to set up a consultation with one our attorneys.
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