This post was written by Kirk D. Falvay, Estate Planning Attorney
1. Make certain you have a will.
Your will determines who inherits your property which is not jointly owned, is not in a trust, or does not pass to a beneficiary on your death. Your will also designates the individual(s) you want in charge of handling your estate.
Even if you have a living trust, you need a will. If assets are not titled in the trust name when you die, they may need to pass through probate. Your will should designate your trust as the beneficiary of your estate.
2. Consider a living trust.
A living trust, for most people, is the best way to plan their estate. It can serve as the foundation and centerpiece of a well-designed estate plan.
There are many benefits to having a trust: probate can be avoided; taxes can be minimized or avoided; inherited assets can be protected; younger or spendthrift beneficiaries can be protected, and; numerous contingencies can be considered.
To determine whether or not you should create a trust, meet with a qualified estate planning attorney.
3. Have a durable power of attorney in place.
If you have a durable power of attorney, if you get sick or are in an accident, the person you have designated should be able to take care of your legal and financial affairs under the terms of that document.
If you do not have a durable power of attorney, you may need to have a conservator appointed by the court if you become incapacitated.
4. Have a durable power of attorney for health care.
With a durable power of attorney for health care, you can designate the person you want to be in charge of making medical decisions for you if you cannot make them yourself. If you are unable to make those decisions, and you do not have this document, your family may have to go into court to have a guardian appointed for you.
5. Have a living will in place.
Make certain that you have expressed your desires, in writing, concerning having your life prolonged by artificial means if you are terminal or in a permanent coma. If you do not want life support measures in those instances, your wishes should be clearly stated in a document, and someone placed in charge to carry out your wishes.
6. Authorize the release of your medical information.
You need to have a signed document which authorizes medical care providers to give your family members or loved ones information about your healthcare or condition. Under HIPAA (Health Information Act) your doctors, and any hospital staff, are not allowed to discuss your condition without your written consent, even if you are very ill. Not all providers strictly adhere to the law, but to be safe, make certain you have such a document in place.
7. Designate a guardian for your minor children.
If both parents of a child die or are unable to care for the child, a guardian will be needed. If you have minor children, make certain that you have a written document indicating who you want to serve as guardian for your children if the need should arise. Without such a document, the court may impose a guardian who the court determines, not you, is most suitable to raise your children.
8. Check your beneficiary forms.
Make certain that your beneficiary forms designate the people you want to receive the money. Whether the form is for life insurance or a retirement account, you need to consider both the primary beneficiary and the contingent beneficiary.
If you have a trust, the trust should probably be the beneficiary of any life insurance. If you have a spouse and children, your spouse will usually be your primary beneficiary on your retirement accounts, and your children the contingent beneficiary.
Since your beneficiaries are permitted to stretch the period of time over which they receive your retirement funds, you may want to consult with a qualified estate planning attorney to make certain you are making the best choices when you designate your beneficiaries.
9. Check the titles to your real property.
Do you have a copy of all deeds to real estate you own? Do you own the property in your name or jointly with others? If it is joint, do you own it as tenants in common, or with rights of survivorship? Is the property held in the name of your trust?
How you hold the title to real estate determines what happens to it when you die. If you are unsure of the answers to any of these questions, or you do not understand the ramifications of how title is held, you should consult with a qualified estate planning or real estate attorney to make certain title is held in the correct manner.
10. Consider creating limited liability companies or corporations.
If you rent a house, you are operating a business. If you sell anything for profit, hire people to work for you, or provide services to others, you are at risk as a business owner.
The best way to minimize your risk is operate the business as a limited liability company (LLC) or a corporation. If property structured, you should be able to prevent someone from suing you personally. Without that protection, many of your personal assets may be at risk of loss if you are sued. Consider consulting with a qualified business attorney to see whether or not it makes sense for you to create and operate your business as an LLC or corporation.