Time seems to be one thing we just can’t get enough of. You spend your life working tirelessly to care for your loved ones, but still might not have prepared an estate plan to care for them once you’re gone. If you are able to answer the following questions or at least think them through, you can get a jump start on the estate planning process today.
One major issue that needs to be addressed during the estate planning process is the handling of your money and property. This includes what will happen while you are alive and what will happen at your death. The person(s) you choose to put in charge of your money and property should be trustworthy, detail-oriented, prepared, savvy with their own money, and good at record keeping. To assist you with your financial affairs, you may decide to appoint someone to serve as your agent under a financial power of attorney and/or a successor trustee of your revocable living trust.
The agent is responsible for carrying out the financial transactions listed in the financial power of attorney on your behalf while you are alive. The document can be prepared to meet your needs, granting your agent as much or as little authority as necessary or desired. You could grant your agent the authority to do everything you could do (referred to as a general durable power of attorney), or the agent could be instructed to only open a bank account for the purposes of depositing a specific check (referred to as a limited power of attorney).
You also have the ability to specify when your agent is allowed to act on your behalf. With a springing power of attorney, the agent can act only if you become incapacitated. The method used to determine whether you are incapacitated is stated in the power of attorney. Alternatively, an immediately effective power of attorney allows your agent to act the moment you sign the document, even though you are still able to conduct your own financial affairs. However, this document does not limit your ability to carry out your own transactions: It merely gives you another person that can carry them out instead.
Another way a trusted individual can assist you is by serving as a successor trustee of your revocable living trust. When the trust is first created and you transfer money and property to the trust, you will likely serve as the initial trustee and will be in full control of the money and property, just as you were before. In addition to being the trustee, you will also be the current beneficiary, allowing you to continue to enjoy the money and property even though it is now technically owned by the trust. For the foreseeable future, this situation will work well. However, the true benefit of the trust comes into play when you are no longer able to fulfill the role of trustee. At that point, the trusted individual you have appointed as your successor trustee will step in and manage the money and property for you, without court involvement.
Even if your successor trustee is stepping up at your death, this will also occur without court involvement. Regardless of when the successor trustee takes over, i.e., when you are unable to manage your affairs or upon your death, he or she is required to follow the instructions that have been laid out in the trust instrument. This means that the money and property will continue to be used for your benefit during your lifetime and for the benefit of those you have chosen at your death.
In the event you are unable to communicate your medical wishes, your agent under a medical power of attorney is the person who can make the life or death decisions on your behalf. It is important that they are level headed, can act under pressure, and most importantly, will communicate your wishes, regardless of their own. If there are family members who do not agree with your choices, you may want to think twice before giving them the authority to make medical decisions on your behalf.
It is also important that you consider the individual’s availability to act for you and that you have prepared them by talking about what kinds of medical decisions you would want to be made for yourself. Medical emergencies can happen without warning. It is important that whomever you choose as your agent is prepared and available in the necessary capacity to make those decisions for you. If the person you would like to choose is across the country, do they have the time and finances to travel? If your first choice has a demanding job or home life, can he or she be reached in a reasonable amount of time in the event a decision can be made over the phone?
Medical decisions are very personal. Even if you have the most capable person appointed as your agent under a medical power of attorney, it is helpful if you can provide him or her with your wishes prepared in writing. A living will or an advance directive can be a valuable tool for your agent. The living will allows you to state your wishes regarding your end-of-life care: Do you want medication to help manage any pain? Do you want to be put on a ventilator if needed, etc.? While these decisions may take some soul searching, this information may be crucial in preparing your agent to make the best decisions on your behalf.
Guardian of Minor Children
If you have a minor child, you know that regardless of age, they require some level of supervision. In case you are not able to take care of your minor child, and the other custodial parent is not available, you need to make sure you have prepared by appointing someone to step in and take care of your child, even if it is just for a short period of time. This person needs to have the ability to take on the mental, emotional, and possibly financial day-to-day responsibilities of raising your child. Because it is impossible to know in advance the amount of time your child would need to spend with them, you will also need to consider whether the person is geographically desirable or if your child would be required to move, even temporarily.
Guardian of Family Pets
For some people, their pets are like their children and require the same consideration and planning. In the event you find yourself in the hospital for an extended period of time, your pet will need care. Who would you choose to be responsible for them in this situation? Does this person have pets of their own? Will those pets get along with yours? Can the person you would like to choose as caretaker afford to take care of your pets, or do you need to make financial arrangements upfront or arrange reimbursement to the chosen person afterwards?
Distributing Your Money and Property
When thinking about how to divide your money and property, think about what is in the best interests of each person. You do not have to give the money and property to your loved ones outright: You have options.
If you are concerned about giving a chosen beneficiary access to 100% of the money and property they will inherit, you could choose to stagger distributions over a period of time. For example, the beneficiary could receive 25% at age 25, 50% at age 40, and the remaining 25% at age 60. By staggering the distributions in this fashion, your younger beneficiary may be able to use the last portion as a nest egg for retirement.
In the event you would like to incentivize certain behaviors, you can set aside money or property to be distributed when a beneficiary accomplishes certain milestones (i.e., graduates college, stays sober for 180 days, gets their first full-time job). This can be helpful if you are concerned that the inheritance might derail a beneficiary from a productive path. By making the distributions contingent on certain behaviors, you can help ensure that they are being kept on the right track even after your death.
For some beneficiaries, it may be more appropriate for any distribution to be left within the complete discretion of the named successor trustee. Although this may sound harsh, there are many types of beneficiaries that can be safely provided for using this strategy. If your chosen beneficiary has creditor issues, their creditors can only take the money or property that has been given to the beneficiary. So long as the money and property remain in the trust, and the trustee is not required to make distributions to the beneficiary, the money can stay out of the hands of the creditors.
Additionally, a properly prepared trust can prevent the beneficiary’s former spouse from taking the inheritance due to the limited control your beneficiary has over the money. This is not to say that your beneficiary will never receive any benefit from the trust: It just means that the trustee has the ability to make sure distributions that are truly in the best interest of the beneficiary, at the best time and in the right amount.
We Are Here to Help
We understand that this is a lot to think about, and you may have questions. Here at Nielsen Law PLLC, we are prepared to help you navigate through the estate planning process. To help address any scheduling concerns you may have, we are able to meet with you via video conference. Time is precious, but so is protecting your loved ones. We are here to work with you so that there are as few barriers as possible to planning for your future and so we can help move the process along as steadily as possible.
Give Us a Call
Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.