Estate planning refers to the practices that help put your life in order so you can live well now and depart with security, dignity and a legacy to pass on.
Estate planning is not only for the rich, it is for anyone who owns anything – and it’s never too early to start. From your first simple will, to complex trusts, it is important to build the foundation for your plan early and modify it as your family and assets grow.
Measure Law attorneys specialize in wills, trusts, probate, tax planning and elder law. We invest in each stage of life planning, so you can live well…now.
What happens without estate planning?
Without an estate plan, will or trust, Montana state law controls the distribution of assets upon your death...not you. These laws are known as the laws of intestate succession.
Without a valid will or trust, you do not have control of who receives your assets, or who becomes the guardians of your minor children, and how t
hey will receive their inheritance.
If estate planning documents are not in place, upon an incapacity or disability, you do not get to decide who is in charge of your assets and personal care decisions, and will likely be subject to state guardianship and/or conservatorship proceedings.
What is included in an estate plan?
At minimum, your estate plan should include the following elements:
A will and/or revocable living trust
Power of attorney for financial decisions
Power of attorney for health care decisions
Living will
Beneficiary designations for investment accounts
Estate Planning Terms
Beneficiary
An individual named to receive a certain asset upon death (in the case of a will) or upon a certain age or life event (if held in trust).
Beneficiary Designations
Agreements set up with financial institutions to direct payment or transfer of the account to specific individual/s, business/es or organization/s named as beneficiaries. Beneficiary designations include Payable On Death designations for assets like bank accounts, and Transfer on Death designations for the transfer of assets like stocks.
Durable Power of Attorney for Financial Decisions
A legal document designating another individual to make financial decisions on your behalf, and deal with financial matters (ie. write checks, pay bills, negotiate contracts) in the event you are unable to make these decisions due to incapacity or disability.
Durable Power of Attorney for Health Care Decisions
A legal document appointing another individual to make medical and personal decisions on your behalf, including decisions regarding medical consents, long-term care, and life support issues, in the event you are unable to make or communicate these decisions yourself.
Fiduciary
A person to act in a position of trust on behalf of another person. This could be an agent under a power of attorney, a personal representative in a probate estate or a trustee. A fiduciary may be a professional, such as a bank’s trust department, or could be a trusted family member.
Intestate Succession
State laws that determine how to distribute the estate of someone without a will.
Last Will & Testament*
A will is a legal document which sets out an individual’s desires for the distribution of assets after death and appoints a personal representative to manage the administration of the estate.
Personal Representative/Executor
The person either named in your will, or appointed under state law (if there’s no will) to provide necessary notices of your death, pay off all debts and expenses and ensure your assets are distributed to the proper individuals or organizations.
Probate
The legal process of transferring property after an owner's death, acting out the wishes in a legal will, or if there is not a will in place, according to state law. Generally speaking, probate calls for the gathering of all assets, paying off debts and distributing any remaining assets in accordance with an estate plan and the law.
Revocable Living Trust*.
A trust is an agreement wherein a separate entity, the trust, holds legal title of assets and manages those assets on behalf of another individual(s). A trust is created by a settlor (also known as the “trustor” or “grantor”) and the assets of the trust are managed by a trustee for the benefit of the beneficiary. During the lifetime of the settlor of a revocable trust, the grantor retains complete control over the trust and can amend the trust, transfer or sell assets of the trust, or terminate the trust at any point.
Trustee
An individual or institution named in a trust with the responsibility of holding, managing and distributing assets for the beneficiaries according to the terms of the trust.
*Both wills and trusts are legal documents that describe how and when to divide and distribute your assets upon your death. Whether you need a simple will or a more complex revocable living trust depends on your specific situation, such as where your assets are situated, the value of your estate and the situation of your beneficiaries (minor children, special needs, spendthrifts, etc.).
Discuss your circumstances with an estate planning attorney to determine which makes sense for you and your family.
Estate Planning Checklist
Once you are ready to begin the estate planning process, here is a checklist of items you will need to bring to your attorney to begin your will or trust process:
A list of your Assets - all property you own including real estate, personal property, bank accounts, stocks, bonds, IRAs and anything else you own except death benefits on life insurance, including how you hold title (joint tenancy, individually held) and who you have named as beneficiary for these accounts.
Name, address, phone, birthday and relationship of children or other individuals, or charities you want to name as beneficiaries of your estate.
Name of personal representative, including an alternate and second alternate.
Name of person designated with financial power of attorney, including an alternate and second alternate.
Name of person designated with healthcare power of attorney, including an alternate and second alternate.
Specific gifts - any gifts to be distributed prior to the distribution of the remainder of your estate, such as: a charitable gift, a lump sum gift or a piece of jewelry to a particular individual or entity.
Your specific wishes for the overall distribution of the remainder of your estate. For example: everything to a spouse, equal shares to children, half to a child at a certain age, half to a charity, etc.
Guardians for minor children, and alternate guardians
Name of the individual or institution to act as trustee, in the event a trust is necessary.
Any special instructions or desires for your estate, the distribution of your remains or other considerations.
By taking some time to discuss these issues you can create a plan that fits the unique concerns of you and your family. If you have additional questions regarding estate planning, contact Kelly O’Brien at Measure Law.
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