Understanding Basic Estate Planning Documents
WILLS – Your Will tells a Probate Court what to do with your property after your death in addition to other important directives. You will name an Executor and an Alternative Executor whose functions are to see that the terms of your Will are followed and perform other administrative tasks under the supervision of the County Probate Court. You may make specific bequests of certain property to specific beneficiaries. You may also state other important directives such as nominating a particular individual to act as the guardian of your minor children. You can change your Will at any time. However, a Will should be drafted by a lawyer and executed with the requisite statutory formality. Because your Will is such an important document, we provide an option of storing the original in our safety deposit box, without charge.
LIVING WILL – A Living Will authorizes a physician to withhold life-sustaining treatment in the event you are in a terminal condition from which you will not recover in the opinion of two physicians. It is a misnomer in that it has nothing to do with living or the disposition of your assets. It is a document which permits a physician to “pull the plug” in the event that it is medically determined that your terminal condition will not improve. It is an advance directive to the medical community to allow you to die peacefully without the exhaustion of your accumulated assets. The document requires the medical community to keep you comfortable and pain free. You should keep the original at your home with your important papers. Copies should be given to the persons you have designated as those with whom the physicians should discuss your condition. We also recommend that a copy be given to your family physician.
HEALTHCARE POWER OF ATTORNEY – A Healthcare Power of Attorney is a document that basically creates another “you”. In short, it authorizes your agent to make decisions regarding your healthcare in the event that you cannot, or will not, make your own healthcare decisions. If there is a conflict between your wishes and those of your agent, your decision will prevail. A Healthcare Power of Attorney is revocable at any time. You may also nominate an alternative agent. You will give the original to your agent and keep a copy with your important papers. We recommend that you also provide a copy to your family physician.
DURABLE POWER OF ATTORNEY – A Durable Power of Attorney is a document which nominates and permits another person to conduct your business affairs such as payment of bills, signing contracts, transferring property and any other specifically enumerated power. At the same time, you do not lose any authority to conduct your business affairs. Instead, you are simply authorizing an alternative agent. Within this document, you may also nominate a guardian of your estate or person should you become incompetent or incapacitated. Oftentimes, it is wise that you retain the DPOA in your possession until such time that it becomes necessary. Alternatively, you may include a “springing power” clause which provides that your agent only becomes empowered upon the happening of a certain event, such as your incapacity. As with any Power of Attorney, it may be revoked at any time. However, one should be mindful that any Power of Attorney expires at the death of the person giving power of attorney.
TRANSFER ON DEATH DESIGNATION (ORC 5302.22) – A Transfer on Death Designation is a document that designates a person, persons or entity which will acquire title to your real estate upon your death. This document is filed with the Recorder in the County where the real estate is located. Significantly, it permits your real estate to avoid the Probate process which may involve considerable time and expense. It may be revoked at any time prior to your death. Further, should your designee predecease you, or you change your mind, it may be replaced by a subsequent filing which designates an alternative beneficiary or terminates the designation entirely.
GENERAL CONSIDERATIONS FOR ESTATE PLANNING:
• Certain types of assets may escape the probate process by converting them to non-probate assets. These would include retirement accounts, 401Ks, insurance policies and similar assets for which a beneficiary is named. By way of example, a life insurance policy which names a spouse or other person as the beneficiary will permit the payment of insurance benefits to the beneficiary without Probate Court approval. The value, however, is includable in your estate but will not have a tax consequence unless your estate’s exemption is exceeded (see Taxation section).
• Likewise, bank accounts may be set up as “payable on death” to a designated beneficiary so that ownership passes to the named beneficiary at the moment of your death eliminating the need to probate such an asset.
• Remember, your goal may be to dispose of all of your assets prior to your death in order to avoid the delay and expense of the Probate process and reduce potential death taxes.
• Under federal law, there is a five (5) year “look-back rule” for Medicare benefits. If you become ill or disabled requiring that you be institutionalized in a health care facility, Medicare (or Medicaid) will not pay nursing home expenses until a considerable portion of your assets are first depleted(per the Spend Down Rules). Assets which you gifted or transferred within the last five years are subject to recoupment. Thus, if you “quit claimed” or gave your home to your child within three (3) years of your placement, the government may have the right to take the property from your child. Careful consideration should be given to this concept in light of your, or your spouse’s, health.
• Everyone’s situation is unique. Additionally, you may have other assets or circumstances which deserve special consideration. We would be happy to discuss your specific needs, goals and questions.