A critical component to all estate plans is that an individual needs five must-have estate plan documents. The 5 must-have estate planning legal documents consist of:
- Durable Power of Attorney
- Health Care Proxy
- Living Will (Health Care Declaration)
- Authorization for Release of Protected Medical Information (HIPAA)
- Last Will and Testament/Living Trust
It is important that an individual has his or her advance directives in place.
Advance directives are documents that are executed in advance of a crisis and that allow a person to designate an individual or individuals to make health care and financial decisions on their behalf, in the event it is needed. Advance directives include: A Durable Power of Attorney for financial decision making and asset management, a Health Care Proxy for health care decision making, an Authorization for Release of Protected Medical Information (HIPAA) so people you trust can access your medical records for you and make your medical decisions with all the information necessary to make the best decision for you, and a Living Will giving instructions regarding end of life medical decisions. These documents will avoid the need for a guardianship in the future and make sure the person or people that you trust are making the right decisions for you.
As part of implementing a comprehensive Estate Plan, an individual should have a Last Will and Testament, and in some cases, a Living Trust.
A Last Will and Testament
A Last Will and Testament is a legal document that allows you to control who will inherit your assets upon your death and to appoint someone who you trust to serve as your Executor. Your Executor will administer and distribute your probate estate in accordance with your wishes as stated in your Last Will and Testament. By executing a valid Will, you can control (i) who inherits in your assets, by documenting your wishes, (ii) who manages your estate, by designating someone you trust as your Executor; and (iii) you can make sure to provide for loved ones in a protective way.
After your passing, your Executor will be required to probate your Last Will and Testament if you have a probate estate. Probate is the legal process of submitting the Last Will and Testament to the Surrogate’s Court for approval. The Last Will and Testament will only govern assets that were solely owned in the decedent’s name at the time of death and which have no designated beneficiaries. Assets that the decedent owned at death that has a right of survivorship, beneficiary designation, or are held in trust, will pass by operation of law outside of the Last Will and Testament.
Many individuals choose to establish a Living Trust when one of their estate planning goals is to avoid probate. One of the most important benefits of avoiding probate is that your assets will pass upon your death to your beneficiaries without the delay and costs involved with a probate proceeding in the Surrogate’s Court. This is important because it allows a decedent’s beneficiaries to gain immediate access to assets for the payment of the decedent’s funeral and other expenses.
Similar to a Last Will and Testament, a Living Trust will allow you to control who inherits your assets by documenting your wishes, who manages your estate by designating someone as your Trustee, and assurances that you can make sure to provide for loved ones in a protective way. You should also have a Pour-Over Will in case you do not fully fund the Revocable Living Trust (as a safety net) which pours to the Trust any assets outside of the Trust which does not have a beneficiary designation.
Obtaining these must have legal documents is a critical foundation to making sure you have a comprehensive Estate Plan in place. It is important when implementing estate planning to consult with and retain experienced attorneys. Russo Law Group, P.C., has experienced, knowledgeable and compassionate attorneys who can provide professional services and advise you. Please contact us if you would like us to assist you.