I am confused as to which one would best suit our needs. We have chosen a guardian and someone to oversee the finances but our intent is to leave everything to her.
It is a good idea to make these kinds of plans when you have a minor child. A consultation with an experienced estate planning attorney will answer your questions. There are so many factors that come into play in deciding what documents should be included in an estate plan that your question won't be fully answered by any commetator. I typically meet with new estate planning clients for two hours to go over their situation, including family issues, assets, plans, concerns etc. That being said, I think everyone needs a will. A last will and testament gets your property from your name into the name of your beneficiary(s). Also, where minor beneficiaries are involved, I typically include a trust for use if both parents dies simultaneously. I use "trust" here pretty generically because a trust can do and say almost anything you want it to. The terms are important, and you assist your attorney in writing them by telling him/her how you would expect the trust to operate if you and your spouse were to die. Any trust you create during your life in an instrument separate from your will is a "living trust." Sometimes they are called "intervivos trusts." A living trust is created on the day that you sign the trust agreement and you can name it as the owner of assets immediately. A trust created in your Will is called a testamentary trust. A testamentary trust does not come into existence until you die and your will is admitted to probate. Since you can amend or revoke your will right up until your death, a testamentary trust does not come into existence on the day you sign your will and cannot own assets while you are still living. Please do not confuse a "living will" with either of these. A living will has nothing to do with your assets and everything to do with end of life decisions if you should become in a permanently unconscious state or suffer from a terminal illness. As you can see, there are a lot of questions to be asked with respect to these important documents, and I really think this is not an area that one should try to navigate on their own or try to set up using form or internet products. You will have to pay attorneys fees for this advice, but consider those fees an investment into peace of mind and knowing for sure that how you expect your child to be treated if something happens to you. Things go a lot smoother for surviving family members if you take the time to make proper arrangements.
Good luck to you!
You should consult with an elder law attorney. You probably should have all three documents that you mentioned as they are all important.
However, what you really need is a trusted legal advisor. Build a relationship with a local attorney. Life is complicated and an attorney is an important resource at times.
Lastly, if you find a honorable local attorney ( and I think that there are many) then they will tell you how to be wise in using your assets for legal advice and documents.
Best wishes!
Consult with local counsel.
In CA - if you have real estate and/or significant life insurance, the answer would be yes.
This does not create an attorney/client relationship. This does not constitue legal advice. It is limited to facts of the question. You should consult an attorney in the appropriate state involved before making any decisions based on this answer
I agree that you need to consult with an attorney to make sure that your planning is right for your situation. There are different levels of planning, depending on your objectives, but generally speaking, the best protection for minor children is with a Revocable (or Living) Trust. This tool not only allows you to avoid probate court, but allows you to control the distribution of your assets to the children and customize how and when they receive their inheritance. This eliminates the need for costly probate proceedings and protects the children from financial inexperience and potential victimization.
If you are not ready for a Trust at this time, the most important other consideration is who the guardians will be. You should not only name one set of guardians, but alternates, as well, in case your first choice cannot act.
The guardians can be the same people that you have manage the financial resources, but they do not need to be. Some people prefer to have checks and balances in place. It is also true that the best person(s) to raise the child are not always the best ones to manage the finances.
Please feel free to contact me if you have additional questions or concerns.
James Frederick
Take advantage of free consultations that firms offer to talk about your options. My firm offers a free consultation and is licensed to practice in your area.
For more information on wills, trusts, living wills, and estate planning in general, visit this website: http://attorneymatthewquick.com/?page_id=10.
Please let me know if I can help further.
You should jointly have a trust and each a will, a durable
power of attorney
for medical purposes and a durable power of attorney for general purposes. The trust can be for either your or your spouses benefit during your lifetime, particularly if you become incapacitated. If you leave property to your minor child at the death of the surviving spouse, the trust can avoid the necessity of a conservatorship to manage the child's inheritance. You should each have a will because even if you transfer any and all assets you now own to the trust and/or make the trust the beneficiary of life insurance, you could acquire assets after you set up the trust and neglect to transfer the assets to the trust or you could have pending claims against others or have a wrongful death claim against someone at the time of or as a result of your death.
The medical durable power of attorney allows someone to carry out your wishes as to medical care for you if you are incapacitated and cannot speak for youself. The general power of attorney allows someone to act on your behalf if you are incapacitated or for your convenience. Your spouse will probably be your first choice to act as trustee for you, as personal representative of your estate and as agent under the powers of attorney documents. You should also name alternate candidates for these roles. While the will may play a role if you or your spouse die, it's principal purpose will be to transfer any assets you own at the time of your death or due to the cause of your death to the trust which will recite your wishes as to how your estate is distributed.
This arrangement will have the greatest value for you over the long run and provide for the most protection for you and your family members. The biggest risk that your will face after making these arrangements is updating the documents if your situation changes or if the law changes. Your attorney can advise you as to the changes in the law that might affect you but you should periodically review your situation and ask if the changes in your situation affect your estate plan and, if they do, you should update the plan.
It is important to discuss these issues with an estate planning attorney. You have several options available but the one that is the best for you and your family will depend on many factors. How will you financially provide for your child in the event that you pass away? If your existing assets include real property and other assets that could provide for your child, then you may want to have a revocable trust. It will avoid probate and will details on providing for your child. Alternatively, if your primary asset is life insurance, you might prefer to execute a testamentary trust - which is a will with a trust provision in it. You would not have to fund the trust at this time, however, it would provide a vehicle to care for your child upon your death with the life insurance proceeds.
Important is to appoint a guardian in your will. Without this appointment, if you were to pass away, the Probate Court would be faced with appointing a guardian that it believes is the best individual to provide for your child. This may or may not be the same person you would choose.
I agree with my colleagues that you must speak with an experienced Estate Planning attorney to fully discuss and develop a plan that is right for you and your family.
Erika McNamara
Estate Planning Attorney
Located in WHITMORE LAKE
www.erikamcnamaralaw.com
734-476-0739
