Estate Planning 101: Common Documents
When you hear the phrase “estate plan” what comes to mind? Wealthy people? Your favorite “Trust Fund” friend? Funerals?
If you answered “yes” to any of the above, congratulations! You are just like the rest of us. The truth is, Estate Planning isn’t and doesn’t have to be for just the extremely wealthy. It is for you!
In the remainder of this post, I hope to demystify a few of the common documents used in Estate Planning. You may have heard a few of them before. Full disclosure, this is a heavy topic. Most people, myself included, don’t like to think about death. Unfortunately, it is a reality. You can save your relatives and friends a great deal of head ache and heart ache by planning ahead.
“Will” or “Last will & testament”
Regardless of what you call it, a “will” is essentially a formalized document that puts the world on notice as to your personal wishes in the event of your demise. If you want to think about it in a slightly less morbid fashion, think of it like this. You are getting ready to go on vacation and you are planning. What will you do? Where will you go? Who will watch your children while you go on that anniversary date? If you’re an “A” type, you might even put together a binder containing all of the coupons, reservation documents, and itineraries for the entire trip with color coded tabs. Whether that is you or not, the goal of all that planning is to make sure that you get where you want to go on time and on budget. A “will” is no different, but vastly more important!
A will is nothing more than a plan. It is a plan that will help your relatives, and friends navigate who gets what? How much do they get? Who will take care of your children, or your pets? It is a way to ensure that even in an exceptionally emotional time, there is a clear plan to follow. In my humble opinion, having a “will” is simply a courtesy to your family and close friends. While they may not always agree with it, at least you have made your wishes crystal clear, and time can be spent remembering all of the good times as opposed to arguing about what should happen next.
In short, Advance Directives are a way of planning for your end of life care ahead of time. If you’ve ever gone in for surgery and had to answer the question “do you have a living will?”, then you have had a brief encounter with Advance directives. Keep in mind, these ONLY apply if you cannot otherwise communicate on your own.
Have you ever thought about being on life support, a feeding tube, dialysis? I’m guessing your skin crawled a bit while reading that. If it did, then you NEED a living will! This document will give clear instructions to healthcare professionals and family members in the event you cannot communicate your wishes yourself. THIS ONLY APPLIES IF YOU CANNOT COMMUNICATE ON YOUR OWN POWER. At the end of the day, you are in charge of your healthcare decisions, until you can’t be… At that point, a living will, and your health care proxy become your mouthpiece for communicating your wishes.
Health Care Proxy/Surrogate
Typically, if you are married, your spouse, by default, is your health care surrogate. They will make decisions on your behalf in the event you are unable. So why do you need this document? What if you outlive your spouse? Do you trust your oldest child to follow your wishes? Even if you do, what happens if they are unwilling or unable to make a decision? This document will allow you to designate one or more people to serve in this capacity. This document DOES NOT grant any authority over your finances (bank accounts, investments, etc.).
Durable Power of Attorney
Unlike the Healthcare Surrogate, the person you designate in this document will be in charge of your finances in the event you are unable to handle them yourself. This person can negotiate with creditors, pay your bills, and transact business on your behalf with very little restriction, so it is important that the person you designate is someone you can trust. Generally speaking, it is best to designate different people to handle healthcare and finances. Depending on the circumstances, one of these alone could be a full time job.
This blog post was written by Richard L. Brooks II, Esq. of St. Augustine Law Group of St. Augustine, Florida. It was republished here with his permission. Richard has a strong sense of community involvement. He attends Coquina Community Church and serves on the audio visual team. He volunteers as a Guardian Ad Litem (GAL) for the 7th Circuit representing the best interest of children during an incredibly turbulent time in their lives. He also regularly volunteers at St. Johns County Legal Aid. If you happen to see him in the community, be sure to say hello! In case you are wondering, yes, he still does own that Trans Am he built. He and his wife Danielle can be seen driving it around town on the weekends.