Nobody wants to think about becoming sick or dying at a young age. However, illnesses and accidents can happen to anyone, anytime. And if life teaches us anything, it’s to expect the unexpected. The benefits of an estate plan have become especially clear in recent months.
If you’re starting to plan your estate, consider this estate planning checklist. Then scroll down further to find details and recommendations for each section.
An estate plan is a series of financial planning steps that you undertake to address the health, financial, and family issues most people face as they get older.
Delegating decision-making power for legal, financial, or medical transactions
Offering directives for health care in certain dire medical circumstances;
Providing for ongoing care of minor or disabled heirs if you become incapacitated or die
Managing and distributing assets after death
Planning for succession of business ownership
Minimizing tax and/or probate implications
A common yet incorrect belief is that estate planning is only for the rich. Not true. Estate planning is not just about passing on large amounts of money or real estate. Any assets can be covered in a will, from heirlooms to the family business to Uncle Johnny’s coveted Jet Ski.
Also, an estate plan lets you explain the type of medical care you want to receive if you become incapacitated. If you’re a parent, you can appoint a guardian for minor children or disabled dependents in a will or trust. This avoids the difficult process of having the court appoint a guardian.
The list goes on. The bottom line is that anyone can benefit from meeting with an estate planning attorney to discuss their current situation and hopes for the future.
Once you know what’s possible, you can select the elements that apply to your life. Not every estate plan needs every element. The key is to think about what you have and what you want to happen to it.
To get a clear picture of what you need from your estate plan, it helps to ask yourself questions. Consider these below, plus others that shed light on your current situation, desires for the future, and what should be taken care of in your absence.
Your answers can help you form an idea of the documents needed for your estate plan. Different priorities make everyone’s estate plan unique.
Numerous legal documents and processes, or “tools,” are used in the creation of an estate plan. These address the medical, legal, financial, and logistical facets involved in estate planning.
Depending on the conditions you want to address, your estate plan will contain some or all of these documents:
Last will and testament — Details how and to whom you wish your assets to be distributed after your death.
Declaration of guardianship — Accompanies a parent’s will and contains provisions for the guardianship and care of any minor children or dependents living with a disability.
Trust agreement — Lets you control how, when, and how often assets are distributed, to whom and in what amounts. Trusts are often used to protect wealth from taxes or probate.
Business succession plan — Outlines the plan for transferring a business into the ownership of partners or family members after your death.
Designation of powers of attorney — Name the people you authorize to make legal, financial, and medical decisions for you if you become incapacitated and can’t make decisions for yourself.
HIPAA release – Allows medical professionals to release your information to family and your medical power of attorney. The acronym stands for “Health Insurance Portability and Accountability Act.”
Advance medical directives — Make pre-emptive decisions for whether you want to be artificially revived or kept alive in certain dire medical situations.
Declaration of anatomical gifts — Establishes you as a voluntary organ donor so your organs can be used for life-saving transplants.
Disposition of remains — Lets you stipulate what should happen to your remains after death: burial, cremation, burial at sea, Viking funeral, etc.
Letters of instruction — Communicates informal details and personal messages to your loved ones. Often accompanies the will.
Although everyone needs to write a will, not every estate plan calls for every kind of document. Consulting with an estate planning attorney can make it clear which documents you will and won’t need to file.
Next, collect all the important legal and financial documents that will inform your estate plan. These range from identification and medical documentation to proof of account holdings or property ownership and beyond.
Consider collecting hard copies and creating a well-encrypted digital file of the following documentation:
Personal identification
birth certificate for yourself and any offspring
Social Security documents
citizenship documents, if necessary
passport
marriage licenses
divorce decrees
Health care documents
Results of doctor visits and medical procedures
HIPAA disclosures
Advance directive or living will
Do Not Resuscitate (DNR) orders
Tax documentation
Personal tax returns
Business tax returns
Other relevant tax documents
Insurance documentation
List of all insurance policies
Copy of each policy
Payment schedule for each policy
Financial documentation
Bank account statements
Brokerage accounts or other investment account statements
Share certificates from investments
IRA, 401K, or other retirement account statements
Debt summaries from loans, mortgages, credit cards, etc.
Recurring bills
Property ownership documentation
Vehicle titles
Bills of sales for valuable property
Any policies insuring said valuables
Real estate documentation
Deeds to all real estate property owned
Debt or payment schedules for properties
Legal documentation
Last will and testament
Power of attorney designations
Trust agreements
Proof of digital assets and intellectual property
Monetized social media accounts
Proof of ownership of intellectual property
A listing of important online accounts and passwords
Logistical documentation
Letter of instruction to loved ones
Contact information for representatives, beneficiaries, next of kin
Plan for medical decisions
A main purpose of estate planning is to make plans for medical outcomes you might encounter.
Designating powers of attorney, choosing long-term care options, and creating advance directives can make sure your wishes are followed even if you’re incapacitated. Here are the elements involved:
Powers of attorney usually address fiduciary matters but also can address legal or medical issues. A financial power of attorney is a legal document that appoints someone as your attorney-in-fact. They are empowered to make legal decisions on your behalf.
By designating a health care power of attorney, you can ensure that your medical desires are respected in the event of sudden incapacity. Some states use the term “durable power of attorney for health care” to let another person make your healthcare-related decisions.
If you’re incapacitated without naming a medical power of attorney, the court designates one for you. You’ll have no say over whether or not that person carries out your desires, so designate someone you can trust well beforehand.
Also known as a living will, an advance care directive describes the type and extent of medical care you want to receive if you become terminally ill or incapacitated. It also can stipulate what you’d like done with your remains and allow potential organ donations at the time of your death.
In building the directive, you’re typically asked whether you’d want to be resuscitated if you stopped breathing, and whether/for how long you’d want to remain on life support if there were no chance of your recovering.
Establishing the answers to these questions beforehand makes it more likely that your wishes will be carried out. With your designated medical power of attorney at your side, the likelihood becomes even stronger.
Every state has its own laws regarding advance care directives, and the terms used in each state vary. Such a document also is commonly referred to as a health care proxy, durable power of attorney for health care, medical directive, or medical instructions.
NOTE: An advance care directive is not legally binding. It only provides guidance to loved ones for the medical treatment you want to receive.
Another aspect of estate planning is figuring out how to pay for long-term care, should you need it in the future.
Long-term care insurance is expensive, and Medicare pays only limited amounts. Medicaid imposes strict income limits for qualification, which can necessitate shrinking your assets drastically. A qualified attorney can structure your estate plan to help you qualify without losing everything.
Once your documents are assembled, it will be easier to list all the assets your estate contains. These generally include some combination of:
Personal property such as electronics, heavy equipment or power tools, musical instruments, artwork, antiques, jewelry, collectibles, or other valuables
Vehicles
Bank accounts
Health savings accounts
Retirement accounts, pensions, or annuities
Stocks, bonds, and mutual fund investment accounts
Business interests
Real estate, land, and homes
Life insurance policies
Digital assets such as monetized social media accounts (those that make money through sponsorship, patronage donations, etc.)
Intellectual property such as patents, trademarks, copyrights, trade secrets, or royalties for technology, inventions, recordings, films, or other works of art.
Identify risks and find protections
Several pitfalls can lie in wait for those planning their estates. Structuring your estate plan carefully can minimize their impact and keep your wealth and wishes intact. An attorney can help you identify potential risks as well as carefully plan to address each as best as possible.
Depending on your assets and your intentions for them at the end of your life, you may need to address all, some, or none of these potential pitfalls.
Building an estate plan begins from the foundation of a will, a legal document that specifies your wishes for your wealth and the loved ones you leave behind.
Your last will and testament lets you specify who receives family heirlooms and other important assets. It also lets you nominate an executor to manage your affairs once you’re gone.
If you have pets, minor children, or dependents living with disabilities, you also can use a will to designate a guardian and provide for their care.
The estate planning process requires you to designate two groups of people:
Representatives — These people will help carry out your wishes at the end of your life. Besides your estate planning attorney, these usually include the executor of your will, a trustee if you’ve created a trust, anyone you’ve chosen as guardian for your children or dependents, and the people you’ve named to serve as your various powers of attorney.
Beneficiaries — These are your family members, friends, pets, children, and other dependents. They receive the bequests you make in your will and benefit from the care and/or assets you designate in your trusts. Other beneficiaries can include business partners or charities you’d like to continue to support.
An estate plan can be especially valuable if you have a young family with school-aged children. Appointing a guardian for your children will let them avoid going through the complex and time-consuming guardianship process.
The cornerstone of many estate plans, a trust can serve many purposes. It lets you control how, when, and how often assets are distributed, as well as to whom and in what amounts. Trusts are also used to protect wealth from taxes or probate, and to provide for the care of loved ones.
An estate plan reflects your desires at the time you created it. But things change. You should revise your plan whenever circumstances change in your life, as in these situations:
Purchase of new real estate, property, or vehicle
Income fluctuations, especially with amounts you inherit or receive as a gift
Taking on any new significant debt
A wish to add or replace beneficiaries in your existing plan
Other changes in your intentions about end-of-life or after-death wishes
Also consider revisions in response to substantial alterations in yours or your family members’ life events, such as a:
Birth
Death
Marriage, especially with a name change
Divorce, especially with a name change
New professional position
Significant change in financial status, whether upward or downward
These life changes and more can trigger the need for a revision to your estate plan. Consulting your attorney is the best idea for updating your estate plan.
Estate planning is an intricate process, not recommended as a DIY project despite the availability of online tools. Trust and estate laws are complex and ever-changing. An attorney experienced in the particulars of estate planning can guide you to make sure your desires are legally binding and will be carried out.
Aside from knowledge of the relevant tools, estate planning lawyers also are required to stay up to date on changes in the law. Relevant laws change frequently. What worked five years ago may not work today.
If someone’s estate plan is out of date, its entire objective can be compromised. This can lead to assets unnecessarily going through the probate process, payment of otherwise avoidable estate taxes, or bequests made to people other than the intended beneficiaries.
Many estate planning attorneys provide a free consultation, during which they answer basic questions and outline the process. From there, attorneys either charge a flat fee or an hourly fee, depending on the attorney and the client’s needs.
The money spent on an estate planning attorney can be a worthwhile investment. It can preserve the value of an estate, decrease the likelihood of lawsuits and family drama, and provide you with peace of mind, knowing all your affairs are in order.
Estate Planning for Parents of Children with Special Needs
For parents of a child with autism spectrum disorder, estate planning becomes knottier. They need to financially provide for that child after their own deaths, as well as ensure that the child will be well taken care of for the remainder of his or her life.
Many decisions depend on your child’s level of functioning. Often, children with autism are developmentally delayed, leaving them unable to earn an income or care for themselves. You must plan for your child’s monetary, medical, and logistical needs.
Guardianship
Many children with autism need some care even after reaching 18, the age of majority. Parents obtain adult guardianship so they can continue making decisions for their grown children. To legally obtain guardianship of an adult child, you must complete several legal steps, which vary by state.
You’ll also need to select a new guardian to be responsible for your child once you’re gone. Alternatively, you can have your child designated a ward of the state. (Here is an excellent guide to autism services by state, provided by Medicaid.)
Medical services
Knowing the medical services available to your child after you pass is crucial. For example, Medicaid covers autism as a disorder “that can cause significant social and behavioral challenges.”
Income and finances
Providing for the future of a child with autism is not as simple as leaving them money in your will. Funds above a certain amount can jeopardize your child’s eligibility for state or federal services, potentially leaving them without adequate support.
Two governmental programs often come to the rescue: Social Security Disability (SSD) for workers, and Supplemental Security Income (SSI) for low-income individuals with a disability. It’s recommended that you consult an attorney for help navigating their requirements.
Decision-making
Your adult child may or may not be able to make some decisions for themselves. If they have a high degree of functionality, you can write into the guardianship papers the areas where they can exercise decision-making.
Last will and testament
Your will describes how you want your estate distributed and appoints a guardian for your child with autism. You can also name someone to execute your living will, which specifies how you want to be treated if you become unable to make medical decisions.
Special needs trust
Many parents are unaware that simply leaving a child money in a will can invalidate their eligibility for state and federal services, such as SSI and SSD. Governmental services are only available to people with less than about $2,000 to their name.
To walk this tightrope, you can set up a special needs trust and appoint a trustee to manage the money. It’s also imperative that you don’t name your child with autism as a beneficiary of any assets not specifically listed in the special needs trust.
The help of an attorney is recommended when setting up a special needs trust.
Letter of intent
You use a letter of intent to describe your child’s history and current situation, plus how you want them cared for after you’re gone. The document is not legally binding, so you should put other legal safeguards in place to ensure that your intentions will be honored.
Durable power of attorney
Having power of attorney means you can make legal, medical, and financial decisions for your child without court approval. Once you’re gone, someone else will take over this role.
With an ordinary power of attorney, the right to act for another ends when that person becomes mentally incapacitated. With a durable power of attorney, the power to act in someone else’s stead remains indefinitely.
Your child will need a few documents to live a functional life after you are gone:
A state-issued ID card (for medical, legal, and public service care)
Registration for the Selective Service (between ages 18-25)
Voter registration (assuming the capacity and desire to vote)
When you have a child with autism, it’s especially critical that your estate planning documents are watertight. Discuss your plans with all the stakeholders (e.g., the child in question, their siblings, intended trustees). And seek the help of an experienced estate planning lawyer.
