BOSCARINO, GRASSO & TWACHTMAN LLP

Estate Planning

Estate planning is a subject which every responsible adult thinks about, but which many avoid. It is true that proper estate planning requires us to plan for unhappy possibilities; but there is relief and satisfaction in having done the responsible thing. A good estate plan is typically not costly. A couple whose taxable assets are under two million dollars can usually achieve essential estate planning for under two thousand dollars. Conversely, the financial and emotional cost of there being no planning in place when death or medical disaster strikes can be very great. The several documents necessary to a basic estate plan are a Last Will and Testament and one or more Advance Directives, which are writings which address medical matters such as the continuation of the use of life support systems when death is imminent, the designation of a health care representative, the designation of a conservator if one becomes incapacitated, and possible organ donation.  Also to be considered is the possible appointment of an attorney-in-fact by means of a Durable Power of Attorney.  Depending upon a person's family situation and wishes, one or more trusts may be necessary.  Attention to the beneficiary clauses and ownership of life insurance policies and the "transfer on death" provisions of financial accounts is also important.

While you may already have done some estate planning, it is important to review your estate plan periodically.  Whenever there is a major change in your life or family situation, your estate plan should be reviewed.  Major changes that should lead to a review of your estate plan include, but are not limited to, death of a spouse or other family member, divorce, the birth of children, change of job or retirement, disability or illness, receipt of a financial windfall such as an inheritance, or a move to a new state.

1. The Last Will and Testament

A Will, or Last Will and Testament, is a centerpiece of basic estate planning.  It is a written document formally executed and witnessed by which the state allows you to direct the use and distribution of your property and assets.  It is particularly important for the parents of young children who must make provision for the physical and financial care of those children if both parents are deceased.  It allows you to designate the guardians of your minor children and appoint an executor to manage your estate.  It is also important to create, review or modify your Will when other major events in life occur that change your plans and expectations.  A Will may contain a testamentary trust which will direct that the property of a beneficiary be held by a trustee for investment and ultimate distribution of that property for the benefit of a beneficiary subject to your specific intentions and instructions.

2. Advance Directives

Advance Directives are written instructions, “directives”, which identify the persons authorized to make medical care and treatment decisions if the injured or ill person cannot communicate, and separately, which designate which life support systems are and are not to be utilized in a case of permanent unconsciousness, or unconsciousness coupled with imminent death regardless of what measures may forestall it temporarily. Without such writings, the family’s grief may be compounded by confusion regarding what person has authority, and what the stricken person’s wishes and intentions would be, if he or she could express them.  

There are other documents to consider in preparation for an injury or illness which damages the mind. One may designate a person to serve as court-appointed conservator, if appointment of one or more conservators is medically appropriate. There are two types of conservator: “of the person”, of physical welfare, and “of the estate”, of property. It may be preferable to grant a trusted and capable person a durable power of attorney, so that if necessary he or she may privately conduct business, as an agent, without the probate court oversight characteristic of a conservatorship. Some people particularly wish to make written instructions regarding the disposal of their body in the event of death, so that their wishes regarding such subjects as organ donation, cremation, burial, and memorial services are less likely to be forgotten, misunderstood or overlooked.

3. Trusts

A trust separates ownership of property from control of that property. Trusts are often included within Wills, so that a beneficiary can be supported and assisted by the property placed into trust without having authority to access that property directly.

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