The Process Begins by Understanding the Key Documents
By Stephen Sobey, Esq.
In the back of your mind is a list that, particularly in quiet moments, likes to assert itself. It’s the list of the things you know you should do but haven’t. Items may include scheduling an oil change, finding a primary care physician, cleaning out your refrigerator…and creating an estate plan.
“You need to consider who you trust and, among those individuals, who has the right skill set and disposition to serve as personal representative of your estate or as the guardian of your children.”
One day, hopefully soon, you resolve to check off this last, very important item. What do you need to know? Although an estate-planning attorney can guide you through this process, it is to your benefit to have a basic understanding of the core documents that make up an estate plan and have already considered certain key questions.
The documents generally considered to form the core of any estate plan are the last will and testament, durable power of attorney, and healthcare proxy. Depending on your circumstances (e.g., minor children, taxable estate, etc.) or preferences, a fourth document, the revocable trust, may also be part of this core group. A discussion of trusts would require more space than is available in this article, but the questions posed here will still be useful if you and your attorney decide trust planning is appropriate.
Last Will and Testament
A will’s primary functions are to direct the distribution of probate property, nominate the personal representative (previously known as the ‘executor’) of your estate, and nominate the guardians and conservators of any minor children who survive you.
First, who do you want to get your probate property when you die? Although seemingly straightforward, this question contains within it a multitude of sub-questions. Do you want to make sure someone gets a particular item? Do you want to leave someone a specific dollar amount, and, if so, how much? Is there someone you want to make absolutely sure gets nothing from your estate? And what happens if everyone you have named in your will predeceases you?
As you consider these questions, keep in mind two critical points: the will ultimately controls only the distribution of probate property, which is not necessarily all the property you may own. Probate property consists only of the assets you owned in your name alone at your death. Assets with beneficiary designations, such as life-insurance policies and IRAs; jointly owned assets, such as some bank accounts; and assets in trust are all examples of non-probate property. In creating an estate plan, then, just as important as the question of what you own is the question of how you own it.
Finally, you need to consider who you trust and, among those individuals, who has the right skill set and disposition to serve as personal representative of your estate or as the guardian of your children. The best way to think about these roles, and about any of the other roles discussed here, is as jobs with their own particular job descriptions. In this way, deciding on the right person should be more than a matter of simply naming, for example, your eldest child; rather, give some thought to each person’s proverbial resumé.
Durable Power of Attorney
The purpose of the durable power of attorney is to designate someone to manage your financial affairs during your life. The person you appoint is variously referred to as your ‘agent’ or ‘attorney-in-fact.’
When your agent may act for you will depend on how the document is drafted. In some durable powers of attorney, the agent’s authority is immediate. In so-called ‘springing’ durable powers of attorney, the agent’s authority commences only upon the determination of a physician that you lack the capacity to manage your own affairs. Each of these approaches has its own pluses and minuses, which your attorney can explain.
In a healthcare proxy, you designate an individual to serve as your ‘healthcare agent.’ Their role is to make medical decisions on your behalf in the event you are unable to communicate your wishes. However, the healthcare agent’s authority is effective only upon a physician’s determination that you are incapacitated.
Healthcare proxies are often conflated with what are commonly known as living wills. A living will is a document in which you set your preferences regarding, among other things, end-of-life care. Living wills, unlike healthcare proxies, are not legally binding in Massachusetts; however, this document can provide a helpful framework for your healthcare agent in making medical decisions on your behalf.
This is a general overview of what is ultimately an intensely detail-oriented subject. But, armed with this little bit of knowledge, you have the beginnings of what you need to create your estate plan. The next step, naturally, is to contact an attorney.
Stephen Sobey is an associate with Shatz, Schwartz and Fentin.