Last Will and Testament
At its most basic, a Last Will and Testament (or “Will”) is the legal document that says who can manage someone’s affairs after they pass away and who should inherit them. It can also name a legal guardian for a minor child. If the Will does not name an executor, state law will determine who should become the executor. If someone does not have a Will, then their assets will pass to the people designated by state law. If there is no one to inherit, then the assets can pass to the state’s unclaimed (or “escheated”) property fund.
A Revocable Trust (also called a “living trust” or an “inter vivos trust”) is often referred to as“will substitute.” This means that it acts in place of the Will to determine how assets will pass after someone dies. The revocable trust is a way for someone to own assets during their lifetime (titled in the name of the trust), avoid probate at their death, maintain privacy, and ensure that someone is able to take over management of the trust’s funds if the person who create the trust loses capacity to manage it for themselves. It usually does not become public upon the death of the person who created it.
Simply having a revocable trust is not enough – the trust needs to be “funded” for it to work to its full potential. This means that you need to transfer assets into the name of the trust. If you have a trust but don’t know if there is anything in it, we would be happy to meet with you to discuss what you have and whether it will work for you.
Durable Power of Attorney
There many kinds of powers of attorney. A Durable Power of Attorney is designed specifically for the situation where someone loses capacity to manage their own financial affairs. The Durable Power of Attorney does not appoint someone to make medical decisions. The agent under the Durable Power of Attorney only has authority over those types of actions that are granted in the Durable Power of Attorney. This is a fast-changing area of estate planning, and an ineffective Durable Power of Attorney can result in family members being forced into court to obtain legal guardianship – an expense that could have been avoided with an effective Durable Power of Attorney. If your Durable Power of Attorney is more then 2-3 years old and you live in Pennsylvania or Delaware, you may want to have it updated or reviewed by an experienced attorney like Elle Van Dahlgren, since there have been significant changes in the law surrounding these over the past few years.
Advance Health Care Directive
An advance health care directive (also called a “living will”) appoints someone to make medical decisions if you cannot make them for yourself. The living will specifically covers end of life situations and provides your loved ones with important direction as to what types of treatment you would want if you were in an end of life situation (such as in a permanent coma or vegetative state). These directions, while not medical orders, can be extremely helpful to your family if they have to make very difficult medical decisions on your behalf regarding life-sustaining treatment.
The living will can sometimes be combined with a health care power of attorney. This document also names an agent to make medical decisions if you cannot make them for yourself but applies in situations from which you are expected to recover.
Nomination of Guardian for Children
If you have minor children and something happens to you, a separate document nominating a guardian for your children can ensure that your children are well-cared for during the very scary time when you are not able to care for them. Many people have this nomination only in their Will. However, this does not account for the very important situation of you are injured or hospitalized, unable to communication, and someone needs to take care of your children. Having documentation to ensure your children are taken care of in any situation by the people you intend provide significant peace of mind. At Elle Van Dahlgren Law, LLC, we can also help ensure that the people you name as guardians understand your wishes and goals for your children so they can raise them in the way that you intend.
Declaration of Disposition of Last Remains
Some people have very strong feelings about what they want to happen at their funeral, memorial, or celebration of life. They may have pre-purchased a funeral or burial plot and don’t want to have their family pay for another one. Having a separate document that contains this information and that is readily available if you pass away is can help ensure your wishes are met.
Asset Protection and Irrevocable Trusts
Protecting assets during your lifetime and for your children and grandchildren is a focus for many clients. How to best protect assets from death taxes, creditors, judgments, bankruptcy, or other possible risks requires a close look at your assets and your goals. Some of the most common forms of asset protection involve irrevocable trusts for life insurance, real estate trusts (sometimes called “qualified personal residence trusts”), intentionally defective grantor trusts, charitable remainder trusts, or grantor retained annuity trusts, among many others. Many asset protection plans also involve creation of limited liability companies (“LLCs”), partnerships, or other business entities to protect some of your assets from risks relating to other assets. If this is something you are interested in discussing, we would be happy to talk with you more about your specific goals and needs in protecting your assets.
To make an appointment, please contact Elle Van Dahlgren Law, LLC by calling 302-407-5009 today.