Understanding how estate planning documents work is central to creating an estate plan for each individual’s unique situation. An estate planning attorney does not need to know the details of your life because they’re nosy! It is because understanding the 'big picture' of your estate is crucial! This is how they can create a plan tailored to protect you during your lifetime, plan for long-term care and distribute assets upon your death. A recent article, “Understanding estate planning documents” from Lake Country Record-Bee, explains in broad strokes what each estate plan needs to include.
For example, the will nominates an executor to administer the decedent’s estate, including the distribution of specific gifts and other assets. In Virginia, a will properly drafted by an experienced attorney, must be witnessed in front of a notary along with two people who have no interest in the outcome of your will and do not benefit from your estate when you pass. At death, the distribution of assets only applies to those in the estate and not to those who receive property transferred under a trust, through a designation of death beneficiary form or a joint tenancy title.
A trust controls and manages assets placed in the trust during life and after death. It is best to consult with an elder law attorney experienced in these matters to discuss if a trust is right for you and your family's situation! Assets held in a living trust are used to avoid conservatorships, should the person become incapacitated during life. Assets in trusts do not go through probate.
Assets transferred into a living trust must belong to the person to establishes the trust, known as the settlor. A married couple may establish a joint trust to receive community property, if they live in a community property state. Each spouse may choose to transfer his or her own separate property assets into a joint trust, or keep their separate property assets in separate trusts.
Trust assets are titled for ownership and control to the trustee. The trustee is a fiduciary, meaning they are the legal representative of the trust and administer the provisions of the trust as directed in the trust documents.
You should always have a successor trustee for a trust, who takes office when the last initial trustee resigns, becomes incapacitated, or dies. How and when the transfer to the successor trustee takes place is included in the trust documents. Some trusts include a specific method to fill a trustee vacancy, if no nominated successor trustee accepts the role.
Living trusts can be changed by the settlor. The incapacity or death of the settler makes a living trust an irrevocable trust. A joint trust, however, sometimes allows either settlor acting alone to amend the living trust. Again, an experienced and certified estate planning attorney should help you determine whether this type of trusts, or other trusts depending the given situation, makes sense for your family.
Powers of attorney (POA) allows a person (the principal) to authorize another person (the agent) to act as a representative over some or all of the principal’s own legal and financial affairs. The POA does not have any power over a trust; the trustee is in charge of the trust. In these modern times, it may be tempting to go online for something like this, but POA forms found online do not always reflect specific individual wishes or give needed powers the agent may need in certain situations! It’s best to consult with and have one created by an estate planning attorney licensed to practice in your area, based on your own unique situation to avoid any future trouble and problems down the line.
The Health Care Power of Attorney or Advance Medical Directive (AMD) delegates authority to an agent to make decisions and act on the principal’s needs in health care. This must be created and be in place before incapacity occurs. An incapacitated person cannot sign legal documents.
These are just a few examples! Let's discuss how we can help you in your planning for the future! If you or a loved one are concerned about estate planning or other elder law matters including Asset Protection/Medicaid Planning or have questions regarding long-term care in the nursing home, reach out to us! Book a call with us on our website: www.VAElderLaw.com to get started. We have offices in Bassett, Danville and Lynchburg to serve you!
Reference: Lake County Record-Bee (Feb. 18, 2023) “Understanding estate planning documents”
