If you’re like most people, there is a laundry list of things you’d rather do than think about your estate plan. While it can be a challenging area to discuss, your estate plan is essential to ensure you and your family are protected and cared for, and that your assets are distributed as you wish at your death. While estate planning is not one-size-fits-all, it will be helpful to familiarize yourself with the documents that are often included in estate plans. Your attorney will work with you to customize these documents to meet your specific estate planning goals.
An effective estate plan includes documents to:
- Care for your financial and health care needs while you are living,
- Care for your family and loved ones per your instructions, and
- Distribute your assets after your death.
Revocable Living Trust
A trust is often the cornerstone of your estate plan. Your trust will be used to manage most of your assets during your lifetime, during any periods of incapacity, and after your death.
One benefit of a trust is that it is very flexible and customizable. Upon your death, your trust will include instructions regarding how you would like your assets distributed. For example, your trust can provide for education and health care for your children or grandchildren, but delay principal distributions until they reach particular ages or achieve certain accomplishments. In addition, protection can be added to prevent your children or grandchildren from accessing trust assets if they are having creditor issues, substance abuse issues, going through a divorce, or other similar circumstances.
Another benefit of a trust is that assets owned by your trust avoid probate. Probate is the court supervised process for determining the validity of a Last Will and Testament (if one exists), and managing and distributing probate assets. Probate is often costly and time-consuming, and should be avoided if possible. One of the best ways to avoid probate is to title your appropriate assets to your trust.
Common terms you may find in your Trust:
- Revocable Living Trust – The trust is Revocable, which means you will be able to revoke or amend the trust during your lifetime. Since you are creating your trust during your lifetime, it is a Living trust. Another type of trust can be created through your Last Will and Testament at your death (called a testamentary trust).
- Settlor – The Settlor, also called a Trustor, is the person(s) who created the trust and who transferred assets to the trust. You, and your spouse if a joint trust, will be the Settlors of your trust.
- Trustee – The Trustee is the person(s) or institution who manages your trust assets, including making necessary decisions regarding the trust. You, and your spouse if a joint trust, will likely be the initial Trustees of your trust. You will name successors to serve in your place if you are unable to continue serving as Trustee.
Last Will and Testament
Your Will is only effective at your death, which means it cannot be used to manage your assets if you become incapacitated. If your estate plan includes a Revocable Living Trust, your Will is a “Pour-Over Will,” which takes assets outside of your trust at your death and transfers them to your trust. If your estate plan does not include a Revocable Living Trust, your Will will be used to manage your probate estate and distribute your assets at your death. Assets in either a Pour-Over Will or a traditional Will need to go through probate before they are distributed.
Your Will also names a Guardian or Conservator for your minor or incapacitated children.
Common terms you may find in your Will:
- Testator/Testatrix – The person who makes the Will. Testator can be used for either a male or a female; Testatrix is used only for a female.
- Personal Representative – In Arizona, the Personal Representative, also called an Executor, is the person you nominate in your Will, and who is appointed by the court, to carry out the responsibilities and terms of your Will.
- Guardian – The Guardian is the person you nominate, and who is appointed by the court, to care for your minor or incapacitated children.
- Conservator – The Conservator is the person you nominate, and who is appointed by the court, to oversee the finances for your minor or incapacitated children.
Power of Attorney
Your Power of Attorney, also called a Durable Power of Attorney or Financial Power of Attorney, is the document used to name an Agent to manage your finances and assets outside of your Trust during any periods when you are incapacitated. Besides managing assets, a properly drafted Power of Attorney will allow your Agent to manage areas not commonly considered, such as dealing with your utilities or mail. Your Agent has a duty to manage your assets for your benefit and must follow the guidelines and powers you grant in the Power of Attorney. You may choose to give your Agent an immediate power, or have it come into effect only upon your incapacity.
Common terms you may find in your Power of Attorney:
- Durable – Your Power of Attorney is Durable if it remains valid and is not impacted by the passage of time.
- Agent – Your Agent is the person you name in your Power of Attorney to manage your finances during your incapacity.
Health Care Power of Attorney/Mental Health Care Power of Attorney
Your Health Care Power of Attorney gives your Agent, sometimes called Health Care Agent, the power to make medical decisions on your behalf if you are unable to do so yourself. Your Agent will be given the power to consent or refuse treatment, medications, and procedures on your behalf. Your Agent will also be able to hire health care personnel, procure health care equipment, and review your medical records. Your Agent has the responsibility of making the decisions consistent with any wishes you have made known.
Your Health Care Power of Attorney may contain a Mental Health Care Power of Attorney, or the Mental Health Care Power of Attorney may be a separate document. The Mental Health Care Power of Attorney gives your Agent the power to make mental health care decisions on your behalf, similar to those allowed in the Health Care Power of Attorney. In Arizona, you are required to specifically initial in your Mental Health Care Power of Attorney if you wish to allow your Agent to admit you to an inpatient psychiatric facility.
Common terms you may find in your Health Care Power of Attorney:
- Agent – Your Agent is the person you name in your Health Care Power of Attorney/Mental Health Care Power of Attorney to make health care/mental health care decisions on your behalf if you are unable to do so yourself.
Living Will
Your Living Will, also called an Advance Directive, is the document in which you specify what, if any, life-sustaining interventions you may want if your death is imminent or if you are in a permanent vegetative state. This important document will give your Health Care Agent guidance about what decisions you would want made under different circumstances.
Having a basic understanding of common estate planning documents can help you begin thinking about your estate plan. However, your estate planning attorney will guide you through the process and help you determine the best plan to ensure you are protected and your needs are met.