Delaware County's Law Firm for Estate Planning and Administration
Estate Planning Checklist
Here are is a simple list of the most important estate planning issues to consider.
1. Do you have a Will? Has it been updated in the last five years?
Life changes quickly If your life circumstances hasn’t changed in the last five years then rest assured the law has changed. In 2014 the federal estate tax impacted more estates than it does today. If your estate plan was designed to limit exposure to the federal estate tax, perhaps it should be reviewed to determine in that plan is still appropriate?
Also, do your Will and your Power of Attorney permit your personal representatives’ access to the Digital Accounts? This may not have been an issue in the past but for many it is an important estate planning concern today?
2. Do you have minor children and dependents with special needs? Do your current estate planning documents make special provision for those individuals?
In some cases, there may be concern as to the manner in which the property will pass to the chosen heirs. Often it may not be appropriate for certain heirs to receive their inheritance outright and a trust may be appropriate. This will true in every case where the children are minors or have special needs.
A trust is the recommended for several reasons. First, the trust maybe designed specifically to meet the needs of the individuals involved both in terms of how the funds are expended and how they are invested during the trust term. Secondly, the trust can continue until whatever age the testator feels appropriate even far into adulthood.
In order to provide disposition of property to a minor in trust, the testator will either create the trust in his or her will (a “testamentary trust”) or as a separate trust document created during lifetime (an “inter vivos trust”). In either case the will be generally add probate assets to the trust at the time of death. Non-probate property could also be added by designation of beneficiary naming the trust.
Careful planning is often required if a family member is disabled. One issue is whether there should be a disproportionate allocation of assets to insure the care of the disabled individual. Sometimes the purchase of insurance policy is purchased specifically for this purpose. Also, care should be taken that the portion of the estate that passes to the disabled person passes in such a way so that it dose not disqualify the individual from qualifying for public assistance. This generally means the implementation of a so-called “Special Needs Trust”.
3. Does your current Will make special provision for the disposition of your personal effects?
It is important that the Will specifically address the disposition of the client’s personal property or “personal effects.” Personal effects include items such as watches, rings, collections, etc. Even though this type of property may not have great economic value, the disposition of this type of property has potential to create conflict and bad feelings between the client’s heirs due to sentimental value.
Therefore, the Will should provide for a specific distribution of this type of property or a predetermined method of dividing this type of property in a way which avoids conflict among the heirs. The solution that will recommend is that the Will provide that personal effect be disposed of in a memorandum created by the client outside the Will.
4. Who or what is your "wipe out" beneficiary?
“What happens if none of the designated heirs survives.” This is known as the “wipe out” and should be addressed. If there is no provision for this situation, the estate will pass under the intestacy laws, normally to the closest living relatives determined by degree of relationship. Sometimes these are the last individuals that you may wish to benefit from his or her estate.
5. Have you appointed a Guardian for your Minor Children?
Choosing a Guardian of the person to care for your minor children (those under 18 years of age) is one of the most important estate planning decisions you will make. If both you and your spouse should die, your children will have to be placed with a new family. This is an extremely disruptive process for the children, even if the new family are grandparents or other relatives. If your Will does not appoint a Guardian for your children, the Court will appoint choose the Guardian for you – probably your closet living relative and maybe the last person you would choose. The Guardian once appointed serves as their parent in you place until your children reach the age 18. This situation can be avoided if you appoint the Guardian that you want in your Will of guardianship.
6. Do you have a Durable General Power of Attorney? Does it empower your Agent to access your digital pass words?
With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs.
The person you name to handle your finances is called your agent or attorney-in-fact (but doesn't have to be an attorney). What do you want to happen with your online accounts when you pass on, and how will your heirs find all the passwords? If you own intellectual property such as e-books, photos or other copyrighted material, you may want to consult an attorney. The idea that you might own “digital assets” is fairly new. All of the photographs you have saved to your Facebook account are valuable, and are digital. If they were your only copy and Facebook deleted them, you would have lost a valuable asset. If you become disabled (or if you die) you may want all of those photos to be available to your Agent or Executor. But digital assets can go beyond pictures.
Do you have your own website? Your domain registration is a digital asset. Have you stored years of correspondence in your email account? All of those records are digital assets.
Thus, you Durable POA should contain a special paragraph which gives your Agent legal authority to access your computer, your hard drives, your smartphone, your tablet computer, your online storage (like Dropbox or OneDrive) and your bank and broker accounts. It should authorize your Agent to access your Facebook account, your google plus account, your Amazon account and the thousand others you may have established. It should give your agent authority to access your password list.
Similarly, your Will should contain a special paragraph giving similar authority to your Executor. But additionally, your Executor will be authorized to distribute digital assets to the heirs you specify, and will be given authority to close your various online accounts. The wording of your Will should give your Executor access to your password list.
7. Do you have a separate Medical Power of Attorney which includes a HIPPA disclosure?
Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. A Medical Power of Attorney appoints the individuals that you choose to handle your medical decisions if are unable to make for yourself.
The HIPPA disclosure document allows the person you appoint to access your medical records.
8. Do you have a Living Will?
A Living Will is an invaluable part of an Estate Plan. The Living Will directs that a person be allowed to die a natural death if they are incompetent and either in a terminable condition or state of permanent unconsciousness. Those who have lived through this situation with a relative or friend often appreciate the value of having a legally enforceable Living Will.
9. Do you know whom you have named as the primary and also the contingent beneficiary of your life insurance, qualified retirement plans, IRAs and annuities?
In addition to the disposition of your probate assets your estate plan should address the disposition of your non-probate assets as well. IRAs, 401ks, qualified retirement plans, annuities and life insurance are not disposed by your will but rather by through the designation of a beneficiary. As part of the estate planning process we will ensure that your non-probate assets are also disposed of consistent with your wishes.
10. Have you made special arrangements for your pets?
Those of us who think of our companion animals as family members are becoming aware of the fact that part of our responsibility to these dependent creatures is to make sure that their care and comfort continue uninterrupted should we become incapable of caring for them ourselves. One way to plan for that contingency is to set up something called a pet trust. To help you decide if this might work for you, here are some basic definitions and guidelines to keep in mind:
11. Is your estate subject the federal estate tax?
If your has a value over $11,400,000 the federal estate tax may be an issue otherwise like more than 99.7% of Americans you won't owe federal estate taxes. Also, married couples can transfer up to twice the exempt amount tax-free, and all assets left to a spouse (as long as the spouse is a U.S. citizen) or tax-exempt charity are exempt from the tax.
Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses.
12. Have You made the Necessary final arrangements?
Have you made life decisions know in regard to:
Funeral funeral instructions
Burial or cremation instructions
Organ and body donation and disposition of your body - burial or cremation
13. Have you taken the Necessary Steps to Protect your business?
If you're the sole owner of a business, do your documents address the disposition of this interest. Do you have a Business Power of Attorney appointing someone to deal specifically with your business if you are unable to do so? Do you should have a succession plan. If you own a business with others do have a buyout agreement?
14. Where Are Your Documents?
Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
Real estate deeds
Certificates for stocks, bonds, annuities
Information on bank accounts, mutual funds, and safe deposit boxes
Information on retirement plans, 401(k) accounts, or IRAs
Information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
Information on funeral prepayment plans, and any final arrangements instructions you have made.
Keeping your documents organized will be a great help to your survivors.