Wills & Estate Planning
Benjamin Franklin famously said nothing is certain in life but death and taxes. While estate planning often addresses both of those certainties, planning should often also involve the creation of documents that allow others (such as your spouse or children) to manage your assets or arrange for your health care in the event that you become unable to personally manage your own affairs, either because of age or illness.
For many, basic estate planning needs can be met through the creation of a written Will, Power of Attorney, and a Health Care Directive (commonly referred to as a living will). Those with more assets, younger children, or more complicated situations may wish to use a trust to plan for the handling of your estate upon death and possibly to avoid probate.
Some benefits of having a valid Will are the ability to specify precisely who (relatives, loved ones, friends, charities, etc.) will receive your property when you die. In some cases, and especially with blended families, state law may result in a frustrating surprise to your surviving spouse and children if you have not properly prepared a written will or trust. In your Will, you may also nominate the person you trust to handle the administration of your estate (often, but not always, with the assistance of an attorney and other professionals) and distribution of your assets. If you have minor children, a Will allows you to designate a guardian to care for and continue raising your children in case of your death as well as to provide, through a trust, for the management of your assets for the benefit of your children through their college years.
A Power of Attorney is a legal document in which you give an agent, your “Attorney-In-Fact,” the power to handle financial or asset-related matters on your behalf. A Power of Attorney is only effective during your life, and usually only used in the event that you become sick or incapacitated (possibly by Alzheimer’s or dementia). Some of the powers that you can give your attorney-in-fact include: real property transactions, tangible personal property transactions, bond, share, and commodity transactions, banking transactions, business operating transactions, insurance transactions, beneficiary transactions, gift transactions, fiduciary transactions, claims and litigation, family maintenance, benefits from military service, etc.
A Health Care Directive, also known as a living will or a durable power of attorney for health care, can describe your preferences about issues such as surgery, medication, funeral planning, organ donation, cremation and/or the types of life-sustaining procedures (such as use of feeding tubes) which you would or would not want. You are also able to identify a specific person that you authorize to make such decisions for you when you are unable to convey your wishes due to lack of decision-making capacity as determined by your physician.
Estate tax and other laws are constantly changing. An estate plan prepared only a few years ago may not incorporate new planning opportunities and may cost your surviving family members time, money, and unnecessary frustration. While the current federal estate tax exemption per individual exceeds 5 million dollars, the estate tax exemption for Minnesota taxable estates remains at only 1 million dollars. For those with estate tax concerns, a family cabin, a desire to avoid probate, ownership of real estate outside of Minnesota, or a desire to provide for on-going administration and control of assets for college or other purposes, the use of trusts (revocable trust, irrevocable trust, special needs trust, supplemental trust, gun trust for firearms under the National Firearms Act, asset protection trust) may be recommended. However, planning options are available that do not require use of trusts and that also allow you to avoid probate. Estate planning may also include preparation of a pre-marital agreement (or pre-nuptial agreement). We thoroughly discuss all of the available options with our estate planning clients. If you wish to create a plan, or review an existing plan, that will allow you to rest easy knowing you have done your best to make things easier for your surviving family, call Burville Law Office, P.A. today for a no cost phone consultation or to schedule an office meeting.