Frequently Asked Questions

It all sounds confusing to most.
Wills? Trusts? Revocable? Irrevocable? Probate? Powers of attorney?
Here are some answers prepared by our attorneys.

What is Estate Planning and Why is it Important?

Estate planning is the process of creating a comprehensive strategy for managing and distributing your assets during your lifetime and after your death. It includes essential documents like wills, trusts, powers of attorney, and advance healthcare directives to ensure your wishes are carried out, proper authority is given to manage your affairs, and your loved ones are protected. Estate planning helps you avoid probate, reduce estate taxes, and ensure your family’s financial future remains secure. Working with an experienced estate planning attorney can provide peace of mind and clarity for your family.

What is a Will and How Does it Protect My Family?

A will is a legally binding document that outlines how your assets should be distributed after your death. It allows you to name your beneficiaries (often directing assets to your revocable living trust post-death), appoint an executor to manage your estate, and designate guardians for minor children. Having a well-crafted will ensures your wishes are honored and reduces the risk of family disputes. Without a will, your estate may be distributed according to state intestacy laws, which may not align with your personal wishes.

What is the Probate Process and How Can I Avoid It?

Probate is the legal process used to validate a will and administer a person’s estate after their death. The process involves appointing a qualified executor, identifying and inventorying the decedent’s assets, paying debts and taxes, and distributing the remaining assets to beneficiaries according to the terms of the will. Probate can be time-consuming, costly, and public, which is why many people seek to avoid it by establishing revocable living trusts. Our attorneys can help you create an estate plan that avoids probate, ensuring a faster, more private transfer of assets to your loved ones.

What is a Trust and How Does it Help Avoid Probate?

A trust is a legal arrangement where a trustee holds and manages assets for the benefit of named beneficiaries. Unlike a will, a trust allows your assets to pass to your beneficiaries without going through probate, saving time and costs. Trusts also provide privacy, as they are not part of the public record. Popular trust types include revocable trusts, irrevocable trusts, and special needs trusts. Our estate planning attorneys can help you choose the right type of trust for your specific goals, such as asset protection, tax reduction, and ensuring a smooth transfer of wealth.

Does a Living Trust Automatically Distribute Assets to Beneficiaries?

A living trust helps avoid probate and simplifies the transfer of wealth to beneficiaries, but the transfer is not entirely automatic. A successor trustee must step in after the grantor’s death to manage and distribute the assets according to the trust’s instructions. The trustee ensures all debts, taxes, and expenses are paid before the beneficiaries receive their distributions. Proper trust administration is essential for a smooth transfer of wealth, and our attorneys can guide successor trustees through every step of the process.

Do I Still Need a Will if I Have a Trust?

Yes, even if you have a living trust, it’s essential to have a pour-over will. A pour-over will ensures that any assets you didn’t transfer into your trust during your lifetime are “poured” into the trust after your death. This provides comprehensive coverage for your estate and prevents any unaccounted-for assets from being distributed according to state intestacy laws. Our attorneys can help you create a will that works in tandem with your trust to ensure full protection for your estate.

What is Joint Tenancy and How Does it Affect Property Ownership?

Joint tenancy is a form of co-ownership in which two or more individuals own property together with rights of survivorship. This means that when one owner dies, their share automatically passes to the surviving co-owners, without the need for probate. While joint tenancy can be a convenient way to avoid probate, it is rarely the best solution for comprehensive estate planning and has several consequences. Our attorneys can help you decide if joint tenancy, a trust, or another method is best for your unique situation.

What is the Difference Between a Last Will and a Living Will?

A last will outlines how your assets will be distributed after your death. It allows you to name beneficiaries, designate guardians for children, and appoint an executor. A living will (also called an advance healthcare directive) specifies your preferences for medical care if you become incapacitated. While both documents are important, they serve very different purposes. Our estate planning attorneys can help you create both, ensuring that your healthcare and financial wishes are honored.

Do I Need a Durable Power of Attorney if I Have a Trust and a Successor Trustee?

Yes, even if you have a living trust and have appointed a successor trustee, it’s still important to have a durable power of attorney (DPOA). While a successor trustee can manage the assets held within the trust, a durable power of attorney grants someone the legal authority to manage non-trust assets and handle other personal, legal, or financial matters if you become incapacitated.

For example, if you have bank accounts, investments, or properties that weren’t transferred into your trust, a durable power of attorney allows your agent to access and manage those assets. It also gives them authority to handle non-asset-related tasks like paying bills, dealing with insurance claims, and filing taxes. Our estate planning attorneys can ensure your power of attorney works seamlessly with your trust for full financial protection and peace of mind.

What is the Role of an Executor in Estate Planning?

An executor is the person you appoint in your will to carry out your final wishes and manage your estate after you pass away. Their primary responsibilities include:

Managing assets: Identifying, securing, and distributing the assets in your estate.
Paying debts and taxes: Handling outstanding debts, bills, and estate taxes.
Distributing assets to beneficiaries: Ensuring beneficiaries receive their inheritance according to your will.

The role of an executor can be time-consuming and complex, especially if the estate is large or there are disputes among beneficiaries. Our estate planning attorneys can guide you on how to select the right executor for your estate and ensure they have clear instructions on how to manage your estate effectively.

How Can I Minimize Estate Taxes for My Beneficiaries?

Minimizing estate taxes is a key goal of estate planning. Here are some effective strategies to reduce taxes for your beneficiaries:

Create a revocable living trust to avoid probate and streamline asset transfers.
Use the annual gift tax exclusion to transfer wealth to loved ones tax-free.
Establish irrevocable trusts, such as a charitable remainder trust or an irrevocable life insurance trust (ILIT), to reduce taxable estate value.
Make charitable donations during your lifetime or through your estate.

By working with an experienced estate tax attorney, you can develop a strategy tailored to your financial goals and ensure your loved ones receive the maximum possible inheritance.

What is a Durable Power of Attorney and Why Do I Need One?

A durable power of attorney (DPOA) is a legal document that gives a trusted person (called an “agent” or “attorney-in-fact”) the authority to make decisions on your behalf if you become incapacitated. Unlike a regular power of attorney, a durable power of attorney remains in effect even if you are unable to make decisions for yourself.

This document allows your agent to:

Pay your bills and manage bank accounts.
Handle financial transactions and manage investments.
File and pay taxes on your behalf.
Make legal decisions on your behalf.

Without a DPOA, your loved ones may have to go to court to obtain legal authority to manage your affairs, which can be costly and time-consuming. Our estate planning attorneys can help you create a durable power of attorney to ensure you have a trusted decision-maker in place.

How Often Should I Update My Estate Plan?

You should review and update your estate plan every 3-5 years or after major life events, such as:

Marriage or divorce: Changes in marital status require updates to wills, trusts, and beneficiary designations.
The birth of a child: You may want to name a guardian for minor children or update your list of beneficiaries.
A significant change in assets: Increases in wealth, the purchase of property, or the sale of a business may require trust updates.
A change in estate laws: Changes to federal or state estate tax laws may require updates to your plan.

By regularly updating your estate plan, you can ensure that it reflects your current wishes and financial goals. Our experienced estate planning attorneys provide personalized guidance to help you stay up-to-date.

What is a Healthcare Directive and Do I Need One?

A healthcare directive, also known as an advance healthcare directive or living will, is a legal document that outlines your preferences for medical care if you become incapacitated and unable to communicate your wishes.

A healthcare directive allows you to:

Specify your preferences for life-sustaining treatments, such as ventilators or feeding tubes.
Designate a healthcare proxy (also called a healthcare agent) to make medical decisions on your behalf.
Outline your preferences for pain management, organ donation, and end-of-life care.

Without a healthcare directive, your loved ones and medical providers may be forced to make difficult decisions without knowing your wishes. Our estate planning attorneys can help you create a legally binding healthcare directive so your preferences are clear.

Can I Include Digital Assets in My Estate Plan?

Yes, you can (and should) include digital assets in your estate plan. Digital assets can include:

Online financial accounts (banking, investments, retirement accounts)
Cryptocurrency wallets (like Bitcoin or Ethereum)
Social media accounts (Facebook, LinkedIn, Instagram)
Digital media and subscriptions (iTunes, Kindle, Google Play, etc.)

To protect these assets, you can:

List your digital assets in your will or trust.
Use a digital asset trust to designate a trusted individual to manage your online accounts.
Create a password manager or provide a “digital asset letter” that grants access to your online presence.

Our attorneys can help you develop a comprehensive plan for digital asset management to ensure your loved ones have access and control after your passing.

What Steps Can I Take to Avoid Probate?

There are several ways to avoid probate and ensure a faster, smoother transfer of assets to your beneficiaries. Strategies to avoid probate include:

Creating a revocable living trust: Assets held in a trust do not go through probate and are distributed according to the terms of the trust agreement.
Naming beneficiaries on financial accounts, such as retirement accounts and life insurance policies.
Using transfer-on-death (TOD) designations for investment accounts and payable-on-death (POD) designations for bank accounts.
Joint ownership of property: Property held in joint tenancy or as community property with rights of survivorship automatically passes to the surviving owner, although this should only be used after careful discussion and consideration.

Our estate planning attorneys can help you implement these strategies to protect your loved ones from the costly and time-consuming probate process.

How Does Special Needs Planning Work in Estate Planning?

Special needs planning ensures that a loved one with disabilities receives financial support without jeopardizing eligibility for government benefits. This is often achieved through a special needs trust (SNT).

A special needs trust allows you to:

Set aside money, property, or assets for a beneficiary with special needs.
Protect eligibility for government benefits like Medicaid and SSI (Supplemental Security Income).
Designate a trustee to manage the assets and oversee their use for the beneficiary’s care.

If you want to provide financial security for a loved one with special needs, a special needs trust is one of the best tools available. Our attorneys can help you create a plan that ensures long-term care and financial stability for your loved one.