Estate Planning Fundamentals

One of the kindest things you can do for your loved ones is to plan for the day you may lose mental capacity, lack the ability to express your wishes regarding your own health care, or die. Unfortunately, most people do not know where to begin.  At Corley Law Firm, we work to educate our clients about the need for proper estate planning, the consequences of failing to plan and the benefits of having a comprehensive plan designed to meet your specific needs.  We would be pleased to show you how easy it can be to protect yourself during your lifetime and your family after your death.

Essential Estate Planning Documents

We believe everyone 18 or older needs to have in place the four Ancillary Documents described below:

General Durable Power of Attorney

  • You select who you want to handle your financial affairs and property matters – sign checks, deeds, leases, etc. – in the event you become mentally incapacitated.
  • You avoid the cost of a guardianship proceeding to have you declared mentally incompetent.
  • You avoid the on-going court oversight required of a guardian.

HIPAA Authorization

  • This tells doctors and hospitals the persons with whom they may share your private healthcare information.

Health Care Power of Attorney

  • You select who you want to make medical decisions for you in the event you are unable to do so, whether due to an accident, stroke, sudden illness, anesthesia or other medication.
  • You do not give up your right to make decisions when you are able, even if that’s through the blink of an eye or the squeeze of a hand.

Living Will

  • This will indicate your values and preferences regarding end-of-life treatment.
  • You can state certain conditions that are not an acceptable quality of life, and treatments that you do or do not want to receive once you are in a condition that you have indicated is not acceptable to you (such as a coma, terminally ill with no hope of improving, etc.).
  • Efforts will in all circumstances be made to manage your pain.

Will or Trust

In addition, anyone who owns a home or other real estate (even a mineral interest or timeshare), is married, has a child or any beneficiary with special needs, should have either:

  • a Last Will and Testament (a Will); or
  • a Living Trust (a Trust).
 

A Will or Trust can be used to:

  • Nominate guardians for minor children or children with special needs (if applicable).
  • Say who should oversee the distribution of the estate after a death.
  • Say who should inherit that estate, and when, since many people (including adults) are not equipped to wisely manage an inheritance received in a lump sum.
  • Protect the inheritance of someone with special needs so that it does not interrupt their public benefits.
  • Protect your children and grandchildren’s inheritance from their divorces and creditors; and
  • Protect assets intended for your children and grandchildren in the event your spouse remarries after your death. 
 

Estate tax (often referred to as a death tax) thresholds change but it is safe to say that no estate valued at less than $5 million will incur estate tax. 

A Will can accomplish anything that a Trust can; but a Will must be probated after your death. 

Probate

  • Is a costly and tedious court process that delays the distribution of assets by several months or longer;
  • Requires that an inventory of your assets and debts be filed of public record.
  • Must be repeated in each state in which you own real estate – including a time-share or mineral interest = Ancillary Probate procedure. 

Many people choose to create a Trust to avoid the cost and time delay caused by probate, and to keep their affairs private; this increases the initial cost by $1,000 to $3,000 but in the end typically saves far more.

Our Process

At Corley Law Firm, our goal is to provide superb professional services in a friendly and casual atmosphere.  When designing the estate plan that is right for you, we consider four key essentials:

  1. You – The most important element of an estate plan is to see that you and your concerns are addressed.  Therefore, we first consider your age and health condition, and your resulting life expectancy, anticipated healthcare needs and costs.
  2. People and Causes – We next consider your loved ones, whether that is a spouse, children, grandchildren, parents, siblings, other relatives, friends or pets, and how best to provide for them over time. Many people want to create a legacy by leaving a portion of their estate to a charitable cause with which they have long been involved.  Think about the people and institutions that have made a big impact on your life and decide which you want to benefit from your estate plan.
  3. Assets – We then review assets that you own or control, including your home and other real estate, vehicles, investment accounts, life insurance policies, an interest in a professional practice, family farm or other closely held business, and we explore how best to benefit your loved ones from the results of your work. 
  4. Planning Decisions – Once you’ve identified your own needs and those of the people and causes most important to you, and identified your assets, we design and create an estate plan tailored to meet your specific needs. 

We will work with you to design an estate plan that’s right for you at a price point within your comfort zone.  Your plan will include a Will in almost all circumstances, and it may include a Revocable Living Trust and/or an Irrevocable Trust.  In addition, we will create the Ancillary Documents listed above and certain other coordinated documents.  

Premarital Agreements

​Did you realize that if you marry, your spouse is automatically entitled to inherit a large chunk of your estate – whether real estate, investments or other property?  This is true even if you agree between yourselves that “what’s yours will go to your children and family and what’s mine will go to my children and family.”  The best way to avoid this is to sign a premarital agreement.  Each of you must be represented by independent legal counsel.  But we can draft an agreement per the instructions of our client, and you can review it with your intended spouse and get very close to agreement before having the second attorney review it. 

Sometimes, when we create a joint trust for a married couple, we include a provision that requires the surviving spouse to sign a premarital agreement before she or he remarries.  This protects the expected inheritance of the children of that marriage.

If you are already married, it is possible to sign a postnuptial agreement.  But both spouses must be willing to sign. 
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Finally, you should be aware that Medicaid and the VA will ignore a premarital (or postnuptial) agreement; the assets of both spouses will still be counted when determining eligibility for those benefits.

College Students and Young Adults

If you have a child who is 18 or older, she or he is now legally an adult.  That means you no longer have as much access to healthcare records or even education records.  Federal privacy laws (the Health Insurance Portability and Accountability Act of 1996 (HIPAA) with respect to medical records, and the Family Educational Rights and Privacy Act (FERPA) with respect to educational records) protect this information for your child’s privacy.  Until your child marries you will likely consider yourself to be his or her primary decision maker when it comes to healthcare; your child likely does too.  In order to give you full access to your adult child’s records it is recommended that she or he sign a HIPAA Authorization naming you.  Likewise, if you want access to your child’s education records after she or he turns 18 or attends a school beyond the high school level, she or he needs to sign a FERPA Disclosure Consent form if not considered your dependent (whether due to scholarships or otherwise).  We actually recommend that a college student sign each of the Ancillary Documents described above in addition to a FERPA Disclosure Consent form.  We would be pleased to assist you with that.

Request a consultation ​to learn more about how each of these documents can benefit you.  Experience tells us that we can assist you most efficiently, and at a lower cost, if we send you an Estate Planning Questionnaire for you to complete before our initial meeting.  If you bring the fully and legibly completed Questionnaire to your initial consultation, and all decision makers attend (both spouses if married) it is free up to one hour.  At that meeting, we will review your Questionnaire (and change any of your responses that you then wish to modify), show you where your property will go and the associated cost if you do nothing, analyze whether a Will or Trust works better for you, answer questions, identify issues you have yet to consider and recommend a course of action.  Once we know the estate plan that’s right for you we can quote you a fixed price to create that plan; that quote will be binding for 30 days.  If you choose to engage us, we document our obligations in an Engagement Agreement which provides for payment of one-half of our fee then, with the balance to be paid when the plan is ready to be signed, typically a few weeks later.  We will accept a Visa or MasterCard but assess a 3% fee when doing so.  We offer a “simple” estate plan at reduced cost, but the price for it does not include an initial consultation.  Please request the “simple” estate planning questionnaire if you want that.  If you want help with Medicaid, VA or other long-term care planning, please tell us that when you call.  We hope to meet you soon!