What is Estate Planning Law?
How to resolve legal questions and provide for your loved ones in your absenceBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on February 9, 2023
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Who will care for your children if you die? And how do you make sure your children will spend the money you leave them responsibly? An estate plan can resolve legal questions and ensure your loved ones are provided for in your absence. Even if you think you don’t need an estate plan—due to lack of assets—you probably do. Decisions like who will care for your children or make medical decisions in case of an emergency will be addressed in an estate plan.
Not every estate planning method is suitable for every person, and it’s essential to make sure you have effectively stated your wishes and accounted for all your assets. If you don’t, your loved ones may not be cared for in the way you had hoped. The following is designed to help you get started on your estate plan so that you feel confident speaking to a lawyer if you choose to.
Estate Planning Law – What You Need To Know
- Your estate is all property owned by you at the time of your death. It can include real estate, life insurance policies, retirement accounts, bank accounts, and personal property.
- It’s essential to make sure you have effectively stated your wishes and accounted for all your assets.
- A comprehensive estate plan will also designate guardians for your children and representatives to act for you in financial and medical matters if you cannot act for yourself.
- The requirements for an effective estate plan vary by state, so it will be vital for you to speak with someone who knows the area’s requirements well.
Your estate is all property owned by you at the time of your death. It can include real estate, life insurance, bank accounts, and personal property—like your car. A comprehensive estate plan can ensure that your property goes where you want it to go and that your loved ones can jump through as few legal hoops as possible. You can also designate guardians for your children and representatives to act for you in financial and medical matters if you cannot act for yourself. Many estate plans also include advance medical or healthcare directives through which you can specify the sort of end-of-life treatment you would like to receive.
A will is the way you declare your wishes regarding the distribution of your property when you die. If you die without a will, your assets will be distributed according to your state’s intestate succession laws, and you will not have any control over who benefits from it. The legal requirements for creating a valid will vary by state law, and you may find it beneficial to review your will with a lawyer. There are, however, some general guidelines that you should be aware of.
A valid will is executed by someone with legal capacity and voluntary intent. You will also want to make beneficiary designations that spell out who you want to benefit from the will and what specific property you would like them to receive. The clearer your will, the more likely your wishes will be followed. It would be best if you also considered naming an executor or a person who will follow the will’s instructions. If you do not name an executor, the court may appoint one.
You may want to consider adding a guardianship plan setting forth the care of your minor children. This is especially important if you have a specific guardian in mind. In the absence of a guardianship plan, the court will generally appoint a family member as guardian, and, of course, the court does not know your children or your family and friends as well as you do.
You can create a trust instead of, or in addition to, a will. A trust is an agreement between you and another party called the trustee. The agreement requires the trustee to manage property and assets for a third party, called the beneficiary.
A trust will allow you to maintain control of your assets after your death. For example, you can create a trust to pay for your grandchild’s college tuition, which won’t allow them to use that money for any other purpose. Another benefit of a trust is that you may be able to help your family avoid probate court—the legal process through which estate assets are distributed. Avoiding probate will save your family both time and money.
Trust is an umbrella term covering many kinds of trusts, and you may find it beneficial to speak with a lawyer to make sure you pick the right type for your assets. In general, however, you can create a trust that will transfer your property and distribute assets after you die or create one that begins during your lifetime and may continue after your death.
Power of Attorney
Power of attorney is a written authorization to act for another person. You may want to consider including a durable power of attorney for your healthcare and finances in your estate plan, as it will remain valid even if you become incapacitated.
Financial power of attorney designates a representative and grants the authority to act on your behalf in financial issues. Requirements vary by state, but generally, the legal document must be signed and notarized.
When you create a power of attorney for healthcare (also called a healthcare proxy), you designate a person who will make medical decisions for you in an emergency. This legal document will become effective when a doctor declares that you cannot make medical decisions. Most states require that you be a competent adult when creating the document.
Both types of powers of attorney have a fiduciary duty to represent your best interests. A power of attorney’s authority is typically extinguished by death, revocation, or divorce (if it was granted to your ex-spouse).
Common Questions for an Estate Planning Lawyer
Below are some common questions you might want to consider when meeting with an attorney for legal advice.
- Can I change my will?
- Can I disinherit my child?
- How much do I have to pay in estate taxes?
- How much can I give away before being subject to gift taxes?
- What is the difference between a will and a trust?
- What is the difference between a will and a living will?
- Are living wills the same as advance directives?
- What type of trust is best for my circumstances?
- What happens if I don’t have a will?
- What should my estate plan include?
Finding the Right Estate Planning Attorney for Your Needs
It is crucial to approach the right type of attorney—someone who can help you through your entire case. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location. To help you get started, you may want to consider looking for a lawyer specializing in estate planning.
Should I Talk to an Estate Planning Lawyer?
The requirements for an effective estate plan vary by state, so it will be vital for you to speak with someone who knows the area’s requirements well. You may also find it helpful to talk with someone about your assets and your desired outcomes so that you can make sure the plan you create accomplishes your goals.
A lawyer will further anticipate potential problems with your case and advise you on how to approach them. They may even be able to help you avoid potential issues and keep you out of the probate process altogether. Your lawyer will also file all the estate planning documents with the necessary courts and agencies, giving you peace of mind.
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Additional estate planning & probate articles
- What Happens if Someone Dies Without an Estate Plan?
- What’s the Difference Between an Estate Plan and a Will?
- What Digital Assets Should I Include in an Estate Plan?
- What Assets Should Be Considered When Planning Your Estate?
- What Is the Role of an Executor in Estate Planning?
- Four Ways To Reduce and Avoid Estate Tax
- How Can a Probate Court Process Be Avoided?
- What Does an Estate Planning Attorney Do?
- What Is a Power of Attorney?
- How to Succeed at Succession
- An Overview on Probate and Estate Administration Law
State estate planning & probate articles
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