Estate Planning Roll Call: Important Legal Tools You Should Have

As with any roll call, it is important to make sure that everyone is present and accounted for. Similarly, when assessing an estate plan, several legal tools, or documents, should be in attendance to accomplish the goal of a complete and comprehensive plan. You have likely heard the term estate planning, but you may not be familiar with which legal tools typically comprise a complete estate plan. We want you to understand the legal tools that should be included in your plan and what benefits and protections each legal tool can provide.

Will or Revocable Living Trust

As with many other structures, a well-rounded estate plan must be built on a solid foundation. To establish a foundation for an estate plan, the use of either a will or a revocable living trust (trust) is necessary. Wills and trusts are legal tools designed to direct and control the distribution of money and property that you own. While a will can only provide direction at death, a trust has the added benefit of providing direction in the event of your incapacity during your lifetime, as well as upon your death. Consequently, there are multiple considerations that go into whether using a will or trust as a foundational tool makes the most sense for your situation.

Will

A will as a foundational legal tool often requires that your property go through the probate process upon your death, although certain accounts and property can be transferred outside of probate through the use of beneficiary designations or if the account or property is jointly owned with a right of survivorship. Probate is the court-supervised process in which everything you own is transferred to your loved ones (also known as beneficiaries, or heirs if you do not have a will) at your death. In your will, you elect an individual to be in control of carrying out your wishes and state who gets your accounts and property at your death. This person is commonly known as the executor or personal representative. Prior to being able to carry out your wishes, they must be formally appointed by the probate court.

Trust

Alternatively, the use of a trust as a foundational estate planning tool can allow you to avoid the probate process. However, a trust can only avoid probate when bank accounts and property that you own are retitled (also called funded) into the trust prior to your death or transferred to your trust at your death. Additionally, trusts have the added benefit of protecting your accounts and property that are part of the trust if you become unable to manage your own affairs and can provide more advanced tax planning strategies to those who may face Minnesota or Federal estate tax upon death.

You may be surprised to find out that even when utilizing a trust as a foundational legal tool, you still need a will. The type of will used in conjunction with a trust differs from a standalone will. Instead, a pour-over will is used, which essentially “pours” into the trust any accounts or property that were not titled in the trust at the time of your death. While a pour-over will ensures that accounts and property not funded into your trust during your lifetime are funded at your death, it also provides other essential benefits. A will allows you to nominate a guardian for your minor children.

A testamentary trust is another tool that may be appropriate for you in certain circumstances. The terms of the trust are stated in a will during your lifetime and the trust is created upon your death, usually upon a triggering event, like the presence of a minor or disabled beneficiary. Like with a revocable living trust, you can customize the provisions that control the distribution of money and property through the trusts. However, this type of trust is created during the probate process.

There are a variety of considerations that go into whether a will or trust is the right foundational tool, which is why it is best to speak with an experienced estate planning attorney to help ensure you choose the right one for your unique situation.

Temporary Custodial Designation

In addition to a guardianship designation in a will, there are circumstances in which you may not be able to be with your children, commonly due to extended travel or if both parents are incapacitated. These can be appropriate circumstances for you to name a temporary legal guardian to make decisions on behalf of your minor child while you are unable to do so. There are state-specific guidelines for the length of temporary guardianships in addition to other limitations as to how and what decisions can be delegated to another individual. Minnesota allows for a 60-day temporary custodial designation, after which time a petition for permanent guardianship may be required.

Financial Power of Attorney

You have likely heard the term power of attorney before. A Financial Power of Attorney allows the principal, the person making the document, to appoint one or more attorneys-in-fact, also called agents, to make financial decision on their behalf. An agent’s role is to act as a fiduciary and on behalf of the principal for a number of transactions.

We often use the Minnesota Statutory Short Form Power of Attorney form when preparing documents for our clients because it can be customized to accomplish specific goals, including granting limited authority for very specific duties, such as executing a deed for a singular real estate transaction, or granting broader authority that allows the agent to step into the principal’s shoes and manage almost all aspects of their finances and property ownership to the extent of what is allowable under state law.

A Statutory Short Form Power of Attorney takes effect immediately upon execution and is often drafted to be a durable power of attorney, which stays in effect even when the principal is incapacitated or incompetent, which is often when the principal needs assistance most. The power of attorney stays in effect until the earlier of a revocation by the principal or the principal’s death.

Advance Healthcare Directive, HIPAA Authorization, and Living Will

Our health and the way we manage it is largely dependent on our own beliefs and preferences. If you are unable to make your own medical decisions, you would likely want to make sure that the person making them for you is someone that you trust and who would follow your wishes. To have this control, your estate plan should include an advance healthcare directive in which you designate an agent and several backup agents to act on your behalf if your first choice is unavailable.

An advance healthcare directive also serves the important purpose of allowing you to decide what forms of end-of-life care you would like and state your wishes for things like organ donation and the disposition of your remains.

Health Insurance and Accountability Act of 1996 (HIPAA) authorizations allow an individual to designate who the hospital or medical facilities can provide medical records and information to. These authorization forms became necessary following the enactment of the federal Health Insurance and Accountability Act of 1996, which provides guidelines to the healthcare industry for the protection of patient information. This is an important legal tool to have if you have multiple individuals who are not nominated under your advance healthcare directive that you would like to have access to your medical information in the event of illness or injury. While these individuals will not have decision-making authority, they will be able to stay informed about your medical condition.

A living will is intended to be more so a statement of your intent for end of life wishes. Within this legal tool, you can memorialize your wishes as it relates to being placed on life support if you are in a persistent vegetative state or diagnosed with a terminal illness with no probable chance of recovery. Many clients choose to include their desire for comfort measures and their preference for no extraordinary medical intervention in certain instances. This legal tool is commonly confused with a do not resuscitate order, which is not part of an estate plan and instead is typically filled out at the hospital and applies specifically to resuscitation.

Roll call complete! Now that you have learned more about what tools should be present in your estate plan, you can ensure that you have all of the essentials in attendance when you begin the estate planning process.

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