If you do even a small amount of research on your own you will find a deluge of articles regarding the various estate planning documents recommended by different outlets, services, and law firms. You may still be left with questions. As an attorney who specializes in Elder Law, I can share with you the most frequently asked questions by clients who come to me for their planning.

One of the most frequent questions I get is: “How much does it cost to just get a Will done?” We have all seen movies and TV shows where the Attorney shows up wearing a black suit and hat and reads out the Will in front of a roaring fireplace. Unfortunately, that does not happen in real life.

Wills are an incredibly valuable tool but often work differently than people think, and a complete estate plan consists of more than just a Will. Here are the most frequent questions I have received as an Elder Law Attorney and serve as a brief primer on many of the documents I recommend to my clients.

 Q: If I walk into a law firm asking for an estate plan, what should I walk out with?

A: If you are working with a firm that specializes in Elder Law like ours, we strongly recommend that no one walk out without first having put in place a Power of Attorney and Living Will. Depending on the circumstances of the individual client, a Will and a Trust, either revocable or irrevocable are also part of the package.

I’ll discuss Powers of Attorney (POAs) and Living Wills first and then move on to Wills and Trusts. Additionally, each individual should have their own set of documents, so spouses should each have their own Wills, POAs, and Living Wills.

Q: Why would a POA and Living Will be just as important, if not more important, than a Will?

A: I always tell my clients that having a Will is fantastic, but it won’t do anything for you while you’re alive and that’s most of the time that I will be working with you!

A POA is a document wherein you appoint someone to act as an agent for you on financial matters. In other words, the person you appoint in the document can act on your behalf for anything involving your assets, whether it be real estate, bank accounts, investment accounts, or qualified funds like 401ks or IRAs. These documents are crucial for aging or incapacitated individuals who need assistance with their finances, whether it be paying bills or ensuring assets are protected from creditors.

A Living Will is comprised of two parts. The first part indicates what the signer’s wishes are concerning life support, but only if the individual is unable to speak for themselves and is in the end stages of a terminal illness, a permanent coma, or has no brain activity. The document states that if the signer is in that position they do not want to receive life support indefinitely and would prefer to die comfortably and naturally (unless otherwise elected by the signer).

The second part of a Living Will indicates who the signer wants to be their health care representative and speak to their doctors in the event they cannot do so for themselves.

Q: I don’t feel that I need help now, when would my Power of Attorney (POA) allow my agent to access my money?

A: This is a question that depends on the actual Power of Attorney (POA) itself. Some POA documents are known as “springing” POAs. They only become effective upon a particular circumstance, usually a doctor’s certification that the person who signed the POA is incapable of managing their own finances.

The vast majority of POAs however are not springing and are actually effective as soon as they are signed!

Q: How is a Living Will different from a Do-Not-Resuscitate (DNR)?

A: A Do-Not-Resuscitate (or DNR for short) is different from a Living Will in that it must be prepared and put in place by a health professional. Most DNRs come about when someone is either in the hospital or a skilled nursing facility and elects to put a DNR in place.

A DNR is very black and white, it essentially tells any health professional that if this individual needs any type of life saving measure, they do not want it, no ifs, ands, or buts.

A Living Will is limited in terms of when it applies in that it only comes into play if the individual is fully incapable of making their wishes known and will pass away in a short time regardless of whether life support is administered or not. In that event it serves as guidance for family and medical providers as to what the individual’s wishes are.

Q: How many people can I name as my POA?

A: As many as you would like! You can have it set up where it is a single, primary person only but then if they can’t do it a backup steps in. Or you can have multiple people acting at the same time. Importantly though if you have multiple people acting at once, you need to choose whether they will act “jointly” or “severally.”

Jointly means that each person you name as your POA must sign every document together for it to be binding. For example, if a father names his two sons in his POA and asks them to pay his electric bill for him, both of them will have to sign the check.

A several POA means that only one of the individuals named would have to sign for it to be binding. So, in the above example only one of the sons would need to sign that check.

Q: How many people can I name as my Health Care Representative?

A: Unlike with the POA, we strongly recommend that only one person serve as your Health Care Representative at a time. This helps medical professionals in the unlikely event there is a conflict over goals of care.

Q: I finally put together a Will, what does it actually do?

A: A Will does many things but primarily it distributes assets passing through probate to whomever the individual who signed it, known as a testator, identifies. It only becomes effective after the testator passes away. A Will normally names an Executor, who is the person responsible for making sure the Will is followed.

Q: Does that mean all my assets will go to the individuals named in my Will when I pass away?

A: What most folks do not realize about Wills is that the answer is actually no! A Will does not control all of someone’s assets when they pass away, only those assets passing through probate.

Q: What would make an asset have to go through probate?

A: In short, if it has nowhere else to go! I have always utilized a flowchart way of thinking to determine if an asset needs to pass through probate. Here is what it looks like:

1. Does this asset name a joint owner? (Think of a joint bank account or piece of real estate owned by a married couple together or two siblings or two unmarried persons as joint tenants)
   1. If yes, this asset simply passes to the surviving owner, no probate or Will needed to make that happen.
   2. If no, move on to question 2
2. Does this asset name a beneficiary? This is also known as transfer on death (TOD) or payable on death (POD).
   1. If yes, this asset passes to the beneficiary, no probate or Will needed to make that happen.
   2. If no, move on to question 3
3. Was this asset held in Trust? (more on that below)
   1. If yes, the asset passes “outside of probate” and the trust says what happens to it.
   2. If no, move on to item 4
4. If the answer to all three of the above questions is no, then the asset passes through probate, and the Will says what happens to it.

Q: If I am reading that right then as long as I have joint owners and beneficiaries on everything I own then I don’t need a Will, right?

A: Any Elder Law or estate planning attorney will tell you that’s a dangerous way of thinking. If no assets pass through probate that is fantastic. However, having a Will ensures that if anything unexpected happens such as a forgotten asset showing up or an asset only showing up after the person has already passed away.

Q: I have heard awful things about Probate, how bad is it really?

A: In my experience, probate and Probate Courts get a bad reputation that is frankly undeserved. The vast majority of probate cases simply require that the correct paperwork is completed. However, the fewer assets that have to pass through probate helps cut down on administrative costs and fees.

Probate cases become difficult when beneficiaries are engaged in a dispute. Proper estate planning through an Elder Law attorney can cut down on the possibility of that happening.

Q: I have heard about trusts more and more lately, what exactly are they and what kinds are there?

A: There is an incredible amount of variety out there in terms of trusts. However, when it comes to the usual estate plan a trust is an entity that can hold assets, and as long as it holds those assets at the time the person who set it up passes away, the trust can direct where the assets pass.

Very generally speaking there are two main types of trusts used for estate planning: revocable and irrevocable.

Q: Do I need a Trust?

A: While valuable, trusts do not always make sense for everyone. Many organizations will push trusts as an estate planning “cure-all” but it is important to inquire into what a trust will actually do for you if it is recommended to you.

Q: What is a revocable trust and what does it do?

A: As stated above, a revocable trust keeps assets from having to pass through probate. What sets the revocable trust apart is that it is incredibly flexible. It can be changed as many times as the person who sets it up so desires.

Most assets placed into a revocable trust do not change much and the individual who sets up the trust continues to have total access to those assets just like before they were placed in the trust.

Q: What is an irrevocable trust and how is it different than a revocable trust?

A: The main difference is that once an irrevocable trust is executed, it is set in stone and cannot be changed. As a result, if properly drafted and if enough time elapses after the transfer, an irrevocable trust can protect assets in the event of a future long-term care need such as admission to a skilled-nursing facility and applying for Medicaid.

This area of estate planning is highly complex and consulting with an Elder Law attorney is crucial to ensuring that the proper steps are followed as the cost of improper drafting can be catastrophic.

 

No One Size Fits All

It is important to remember that everyone’s personal circumstances are different, and that estate planning should not take a “one-size-fits-all” approach. Many people worry about where to start and that sitting down and discussing this with an attorney will be prohibitively expensive. Our office always personalizes our documents for our clients and explains in detail why a document or documents are recommended before asking a client to move ahead.

Our law firm attorneys can help by ensuring that the correct plan is put in place to meet your needs while being conscious of personal and financial circumstances.

 

*Disclaimer: None of the above is intended to constitute legal advice, a consultation with a licensed attorney in your state is strongly encouraged before implementing any of the above documents.

 

 About Our Guest Author

Nathan Genest is an attorney with the Law Office of Bickford & Genest, LLC, located in East Granby, Connecticut. He specializes in Elder Law and Estate Planning.

Attorney Genest is a graduate of University of Connecticut where he graduated with a B.A. in History and graduated with honors from the University of Connecticut School of Law.

He is licensed to practice law in Connecticut.

Readers can reach Attorney Genest by phone or by email.

Schedule an Elder Law or Estate Planning consultation online HERE.