Estate Planning: The Importance of Making a Plan

Deborah Sexton Law Office, PA

www.arkansas-estateplanning.com

February 2013

Introduction

According to the American Bar Association, only two out of every five Americans have an estate

plan in place. Studies have shown that most Americans don’t understand estate planning and how it can

benefit them even while they’re still alive.

Estate planning is not as grim as many think. In fact, those who have a sound estate plan are

satisfied to know where their assets go, how much their beneficiaries will receive and who will care for

them in the future. This report discusses the basics of estate planning and clears up misconceptions many

Americans have about the process in general.

“I don’t have an estate.”

Single or married, almost everyone has some sort of estate. An estate is your property, including but

not limited to:

Real estate;

Personal items such as furniture or vehicles;

Intangible property items, including stocks, bonds, pension plans, Social Security benefits, bank

accounts and life insurance policies.

“All I need is a will.”

While a will is the most important document within your estate plan, it is not the only document

you need. These days, you require more documentation than just your average will, especially if you have

young children, life insurance policies, jointly-owned property or trust accounts.

“I don’t need to create an estate plan until I’m ready to retire.”

According to the National Institute on Aging, 5.1 million Americans suffer from Alzheimer’s

disease and many see the first signs of this condition by the time they reach 60. That means that if you

wait until you’re retired to complete an estate plan, you could already be considered medically

incapacitated and unable to complete a plan on your own.

“An estate plan only applies after I die.”

Estate plans do more than distribute your assets—they protect you while you’re still alive also. If

you become mentally or physically incapacitated, a sound estate plan can designate someone to manage

your health care, finances and property. Without such a plan in place, the courts can designate someone to

act on your behalf or decide what medical treatments can be used, including what types of life-saving

treatments to use.

The Reality

When you die without an estate plan, your property still needs to be distributed. Your estate goes

into probate, meaning it will be administered in probate court; the court will appoint someone to manage

your estate. This administrator is then responsible for distributing your assets in accordance with state

laws. While the administrator is supervised closely by the court, this supervision can be costly for an

estate. To pay creditors and court fees, portions of your estate could be auctioned rather than distributed to

family.

Essentially, dying without a will leaves the state to create a “will” for you. The laws on estates are

clear, but not always favorable for beneficiaries. In general, the court is required to pass property to those

related to the deceased by blood or marriage. That means that you have no say in how your assets get

distributed.

Getting Started

An estate is complex and contains more belongings than you might assume. When you’re getting

ready to create an estate plan, it is imperative that you make an inventory of all your personal assets and

give as much information as possible to your estate planning attorney. The items needed to complete an

estate plan can include, but are not limited to:

Names, birth dates and addresses of all individuals to be named in the will;

Names, addresses and phone numbers of the person(s) to be designated the executor of the will;

Names, addresses and contact information for individuals who will be named as guardians for

minor children;

Amounts and sources of income—such as dividends;

Amounts, beneficiaries and sources for retirement accounts and benefits—including government

benefits;

Amounts, beneficiaries and sources for any financial assets—including bank accounts and

annuities;

Amounts of all debts—including revolving and fixed;

Lists of jointly-owned property and contact information for all co-owners;

Information on safe deposit boxes, including their contents;

Legal documents—marriage licenses, prenuptial agreements, tax returns, divorce decrees, deeds,

etc.

Types of Wills

There are various types of wills that depend on your estate, your assets and your wishes. The

most common types include:

Simple Will

This will outlines distribution of assets to one or multiple individuals—referred to as

beneficiaries—so that the entire estate is distributed.

Testamentary-Trust Will

This creates one or more trusts to designate what portions of the estate are transferred to the trusts

and housed there upon death.

Pour-Over Will

This automatically transfers any and all assets into a trust upon death.

Holographic Will

This is in handwriting by the deceased and may or may not be witnessed. Not all states recognize

these types of wills; therefore, they are not recommended.

Oral or Nuncupative Will

This will is spoken and video recorded rather than written down. Again, not all states recognize

the authority of these wills.

Joint Will

This is a will combining a husband’s and wife’s wishes in one document.

Living Will

This will doesn’t distribute property. Instead, it is used to state your preferences regarding the use

of certain medical procedures.

Selecting an Attorney

Estate planning is something that should be completed by a professional. While do-it-yourself

estate plans are available online, they lack the complexity the average individual needs for a sound estate

plan. How-to guides also require numerous caveats. Even if you insist on creating your own estate plan,

you should still have it reviewed by a professional before you finalize your documents.

Working with an Attorney

Estate planning requires time—both yours and that of the attorney preparing your documents.

While simple estates can be completed within a week, more complex estates can require months.

Preparing documents requires numerous meetings and consultations to start, draft and finalize the estate

plan. During the initial consultation an attorney can typically gauge how long the process will take.

After the initial draft is complete, you should review it carefully. More importantly, you should

have your attorney clarify any passages you don’t understand and make changes if necessary. Once it is

signed, the document becomes a legal obligation of the estate.

Trusts

Trusts are legal entities that manage property. Property placed in a trust transfers the ownership from

the original purchaser to the trust. The trust then holds the property for anyone named in the document.

Trusts can be set up with wills so that they don’t take effect until death.

The reasons for using a trust can vary. Many parents use trusts to care for young children upon their

death, while others use trusts as a way to help manage assets for beneficiaries who cannot do so on their

own.

Types of Trusts

There are multiple types of trusts. What type to use depends on the size and type of your estate.

Living Trust

This offers support while you’re still alive. It should also have provisions for what happens to

your assets upon your death.

Support Trust

This directs an individual—called a trustee—to use the assets in the trust for things like general

support, healthcare and education of the beneficiaries. This is often created for guardians of minor

children.

Discretionary Trust

This allows a trustee greater discretion in how to distribute assets among beneficiaries than other

trusts.

Charitable Trust

This is an arrangement to provide for annual gifts to charitable organizations.

Spendthrift Trust

This limits access to trust assets to help beneficiaries, who cannot manage their own affairs or

have problems with creditors, to manage their funds and avoid creditor issues.

Insurance Trust

This helps minimize state and federal estate taxes through the purchase of a life insurance policy.

Medicaid Trust

These help you qualify for Medicaid benefits to avoid the costs of nursing home care, long-term

care facilities and associated medical expenses.

Selecting a Trustee

A trustee can have a variety of duties, but all require an organized, self-sufficient personality.

Expertise in estate management, investments and financial management is important for this individual.

While many assume that a family member is the best individual to select as a trustee, many attorneys

advise against this. A professional trustee, such as an attorney or bank, may charge a fee, but they offer

investment and money-management expertise that most family members don’t have. If you have a large

estate, you should consider a professional trustee. In general, a trustee must be able to:

Give trust beneficiaries copies of the trust documents;

Inform financial institutions about the status of the trust;

Collect and pay taxes and other estate debts;

Monitor the income of the estate;

Ensure the inventory for the trust is accurate;

Prepare tax returns;

Prepare accounting statements for beneficiaries;

Represent the trust in court if need be.

Maintaining an Estate Plan

An estate plan isn’t final once it is complete. Circumstances can occur that require changes to one’s

estate plan. An estate plan should be reviewed at least once a year or every other year. When a significant

life change occurs—such as births, deaths or divorces—the estate plan should be altered immediately.

Estate Plan Updating Checklist

When you’re monitoring your estate plan, look for any of these significant changes that may require your

will or trust to be updated:

Marriage or divorce

Death of a beneficiary

Change in relationship with a beneficiary

Death of an executor

Physical or mental change in a beneficiary or executor

Birth of a child

Relocating to another state

Purchase, sale or mortgaging of a business or real estate assets

Acquiring new assets

Changes in financial circumstances

Changes in state laws

Not updating an estate plan means that the original plan is what the court will honor. Furthermore,

property not included in the old estate plan may be identified as a “residuary estate” and distributed as the

state law provides.

Conclusion

An estate plan is a set of documents every individual—whether single or married—should

complete. While most assume that they don’t have any assets, the fact of the matter is that they do.

Assets don’t have to be enormous to require an estate plan, but an estate plan is necessary if they are to be

distributed appropriately.

You should consult with an estate planning attorney as soon as you become a self-supporting

adult. Creating and maintaining an estate plan early is easier and more affordable than generating a

complex estate plan later in life. In addition, creating an effective estate plan early on can alert you to any

potential trouble areas you’ll have to resolve, such as selecting beneficiaries, identifying assets and

preparing for unforeseen illnesses and accidents in the future.