Understanding who needs to do estate planning, what an effective plan should include and how to go about executing the documents, is key to establishing a valid and enforceable plan that is right for you. Misconceptions abound and any one of them can result in costly mistakes.
Properly crafted, an estate plan will protect you during your lifetime, even during illness or incapacity, allow you to select and empower those whom you most love and trust to manage your affairs or make decisions for you if you become ill or incapacitated, ensure that your property and treasured possessions will be distributed to those whom you have selected under the circumstances you direct, protect assets for those who are or may become disabled and can even protect assets against depletion from taxes and long term care costs!
Some estate planning devices will eliminate court costs and significantly reduce attorneys’ fees. Most importantly, effective estate planning will allow your loved ones to mourn your loss without unnecessary red tape and financial confusion.
The following are some common myths that people have about estate planning:
Estate planning is only for the wealthy. First and foremost, irrespective of the size of your estate, a valid will is the only way to name a guardian for your minor child or children. If you have a small estate, you may not need a complicated will or trust, but you should have a will that directs the disposition of your estate, in other words, who gets your assets. But the real problem is that a will is not the most important part of estate planning. A thorough estate plan must include a power of attorney and health care proxy, both of which protect you while you are still alive. At Berwitz & DiTata LLP, we like to call that “life-time planning.” A power of attorney allows you to appoint someone to handle your finances in the event that you become incapacitated. A health care proxy appoints someone you trust to make medical decisions for you in the event that you are unable to communicate your wishes.
I’m too young for estate planning. Estate planning is not just about what happens after death. “Death-time planning” is of paramount importance if you have minor children but “life-time planning,” planning for your own future, can start as early as age 18. Unfortunately, accidents happen — at any time, to anyone — and it is important to be prepared at every age. Every adult should have a valid and enforceable health care proxy and power of attorney.
My will takes care of everything. A will is a legally-binding statement directing who will receive your property at your death. It also appoints a legal representative, the “executor,” to carry out your wishes. However, the will controls the distribution of only “probate assets,” those assets that are owned in your name individually. Probate is the court process that validates your will and directs the distribution, post death, of your property to the persons named. That’s all. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in a trust, life insurance proceeds and accounts with named beneficiaries, such as IRAs or 401Ks, all pass outside of probate. Thus, a comprehensive plan must include more than a will. In fact, the plan may be designed to avoid probate. In addition, it should appoint someone to act for you if you become disabled or incapacitated, protect beneficiaries who are or later become disabled, protect assets against the costs of long-term care, and even save on taxes.
It is cheaper to create a will on my own. It is tempting to try to save money by doing it yourself, either with some form of online service or just by writing it yourself. Unfortunately the old adage that “you get what you pay for” holds true. The do-it-yourself (DIY) variety of estate planning documents inevitably fall far short of the mark and may end up costing more in the long run. Without a legal education and years of experience, it is impossible to know what planning opportunities are available and how to properly implement them and, if your needs are in the least bit out of the ordinary, how to accommodate them. DIY estate planning can lead to problems that prolong the administration of your estate, cost more and create headaches for your heirs.
Once a plan is in place, I’m done. Once you have a plan in place, you need to review it every few years or whenever you experience a life altering change such as marriage, divorce, the birth of a child, the purchase of property in another state, the death of a parent or spouse, a significant increase or decrease in assets. Circumstances change over time and your estate plan must keep pace with these changes. We are happy to visit with our clients periodically, on a complimentary basis, even if they have not faced major life changes.
Contact Berwitz & DiTata LLP to get working on your estate plan.