Estate Planning Documents
The following are descriptions of documents that should be considered for every estate plan. Most of these will ultimately be included in some fashion in your personal estate plan.
If your net estate market value (the combined value of both spouses if married) is more than $2,000,000, your estate plan becomes more complex because you have to consider estate tax implications. The $2,000,000 figure includes life insurance. The discussion below does not consider estate tax planning. The same basic documents will likely be included, but there may be additional documents or trusts and they may be more complex.
We try to make the will as simple as possible. However, there are many legal principles to be covered in the will so it can become lengthy. Most young couples with small children will want to leave everything to the surviving spouse if one spouse dies. If they both die, they will want to leave everything in a trust for their minor children. We will provide language and ideas for a children’s trust. We will also help you arrange life insurance policies so that if both parents die, the life insurance money will go to the trustee for the children as specified in the will. Parents can also say in their will when a child will receive the money (e.g. at 25 years of age).
Community Property Agreement.
You can use this simple, two-page document to transfer all of the property of one spouse to the other when one spouse dies. By using this method of transferring your property, you can avoid probate. However, the community property agreement can cause serious problems if a husband’s and wife’s combined estate is over $2,000,000. (This figure includes life insurance.) In this case, you should be concerned about estate tax ramifications. Community property agreements can also cause difficulties if spouses are contemplating a separation or dissolution of their marriage, or if either spouse has children from a prior marriage. Some of these agreements are fairly simple and only a few paragraphs long, but others require more thought to accomplish what you want.
General Durable Power of Attorney.
This is a document in which you appoint another person to be your agent. This power of attorney can become effective immediately or you can make it effective only if you become incompetent. The document is usually comprehensive, covering many contingencies. A major purpose of the Durable Power of Attorney is to avoid expenses of and public proceedings required for a court-appointed guardian if a person becomes incapable of making his or her own decisions.
Health Care Directive.
In this document you specify what you want to happen to you in the event you are in such a condition that you are being artificially kept alive.
Health Care Durable Power of Attorney.
With this document you can appoint a trusted person (usually your spouse if you are married) to make health care decisions for you in the event you cannot make them yourself.
Trusts have many uses in the area of estate planning. Usually, a trust is a separate entity created by one person (the “trustor”) to hold property controlled by a second person (the “trustee”) for the benefit of a third person (the “beneficiary”). A common use of a trust is to provide in a will that property will be left to a trustee to hold for the benefit of a minor child. Another common use of a trust is where a trustor to creates a revocable, or living, trust to provide more privacy and to avoid probate at the trustor’s death. Trusts can be used to own insurance policies. Trusts can be helpful in minimizing or avoiding inheritance or estate taxes and preserving more wealth for the family. To learn more about particular types of trusts, see Revocable Living Trust and Special Need Trusts. Ask your attorney about a non-binding letter to your trustee addressing matters not included in the trust.
Disposition of Certain Tangible Personal Property
A Washington statute allows a person to refer in a will to a list of tangible personal property which will say who will receive the property at the death of the person who wrote the will. The statute authorizes gifts of only tangible personal property. The gifted property cannot be money, securities, or other intangibles. The gift cannot be real property. This method of identifying gifts can be convenient if a person wants to specify gifts after the will is written. By way of example, items that can be gifted in this document include jewelry, furniture, or vehicles.
Authorization for Child’s Emergency Medical Care
When parents or guardians leave a minor child in the care of somebody else, and the parents will not be reachable for emergency medical decisions which must be made for the child, it is a good idea to have a person designated to be able to make emergency medical decisions. In today’s world of cell phones and instant access, it is less likely that this document will have to be used, but it is convenient to have a form readily available.
Disposition of Remains
In this document, you can specify your wishes regarding the disposition of your remains and appoint a representative and alternate representative to ensure that your wishes are carried out. Matters discussed in this document include funeral directors (do you have a preference or prepaid contract with a funeral home?), details and authorization for ceremonies and/or services, and methods of ultimate disposition (burial, cremation, etc.)
This document is used to convey important information to those who will be taking care of your affairs after your death. The Survivors Guide includes information regarding the following: your personal information (address, social security number, etc.), names of your children, your various financial accounts, life insurance companies, your attorneys, accountants, and bankers, real estate holdings, debts, electronic accounts and passwords, location of your important papers, and a listing of those people you would like to be notified upon your death. By including all of this information in one document, you can help those who would otherwise need to gather all of this information after your death. This document can be filled out on your own and updated regularly as your circumstances change.
The Physician Orders for Life-Sustaining Treatment (POLST) form allows you to clearly express what type of care you desire at end of life. The form must be obtained and completed with a physician, ARNP, or PA-C, and their signature on the form ensures that your wishes will be treated as physician orders. Topics covered on this form include resuscitation, medical intervention for comfort level, use of antibiotics, and artificially administered nutrition.
The POLST is intended primarily for adults with life-limiting illnesses. We include information about the POLST and a copy of the form in our estate planning package, but interested individuals will need to obtain an original form from their physician’s office.
This information is general in nature and should not be relied upon for your specific circumstances. For information, questions, or comments, please contact Douglas J. Engel or Kathryn S. Kumar.