Estate Planning
Essential Estate Planning.
Estate planning encompasses numerous legal strategies, such as drafting wills, establishing revocable living trusts, creating irrevocable trusts, designating durable powers of attorney, and crafting healthcare documents. Many new clients initially believe they lack an estate plan, but it's often a surprise to them that they already have one in place. In cases where there's no specific legal planning, Arizona's laws of intestacy will dictate the distribution of their estate after their passing. However, this default plan may not align with their preferences. A well-crafted estate plan will supersede the state's default provisions, allowing you to define your own terms for the distribution of your assets.
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Your Last Will and Testament
Your final will and testament constitute just one component of a thorough estate plan. When an individual passes away without a will, it is referred to as dying "intestate," and the distribution of their assets will be governed by state laws, specifying both the method and recipients. Here are key aspects to understand about wills:
- A will holds no legal authority until after one's demise, meaning it cannot assist in handling a person's affairs during periods of incapacity caused by illness or injury.
- A will does not provide a means to bypass the probate process. In fact, it is the legal document presented to the probate court, essentially serving as an entry ticket to the probate proceedings.
- A will is a suitable avenue for designating the guardians (or alternate caregivers) for your underage children in the event of your absence. It is advisable for all parents with minor children to formalize their selection of guardians. Leaving this decision to chance may result in familial conflicts and the potential placement of your children in less suitable care.
Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, Special Needs Trusts, and more.
Trusts come in various forms, ranging from simple to intricate, and serve a wide array of legal, personal, investment, or tax planning objectives. At its core, a trust constitutes a legal entity involving a minimum of three parties: the creator of the trust, the trustee (responsible for trust management), and the trust beneficiary. Frequently, all three roles are filled by a single individual or a married couple. For instance, in the case of a revocable living trust, an individual can establish a trust (as the trust creator) and appoint themselves as the current trustee (tasked with managing trust assets) for their personal benefit (as the trust beneficiary).
Establishing a trust can offer numerous advantages, including the avoidance of probate court proceedings. Typically, assets held within a revocable living trust seamlessly transfer to the trust beneficiaries (or heirs) upon the trust creator(s)' death, sidestepping the need for probate. Certain types of trusts can also yield tax benefits for both the trust creator and the beneficiaries. When properly drafted, another benefit of trusts is their ongoing effectiveness even if the trust creator passes away or becomes incapacitated.
Authority Delegation
A power of attorney is a legally binding document that grants another individual, referred to as the attorney-in-fact, the authority to perform specific actions on your behalf. The extent of these authorized actions is determined by the terms outlined in the document, which can range from being comprehensive and wide-ranging to highly specific and limited in scope. It is important to note that all powers of attorney automatically cease upon the death of the individual who created the document (the principal) and may also terminate if the principal becomes incapacitated, meaning they are unable to make or communicate decisions.
In situations where the primary objective is to appoint a substitute decision-maker in the event of the principal's incapacity, a durable power of attorney should be employed. Durable Powers of Attorney are advisable for this purpose because they remain in effect even if the principal becomes incapacitated. It is also advisable to regularly update Durable Powers of Attorney, as some financial institutions and banks may be reluctant to honor a power of attorney that is more than a year old.
Health Care Documents (or Advanced Directives)
An advance directive is a formal document that outlines your preferences for medical and personal care in the event you become unable to make or convey decisions yourself. In Arizona, anyone aged 18 or older has the legal capacity to create an advance directive, and this document holds legal binding status. Your advance directive can specify who has the authority to make and convey medical decisions on your behalf. It also allows you to specify the circumstances under which you would not want life-sustaining measures to be prolonged, such as in cases where you are in a coma with little chance of recovery.
In conjunction with your advance directive, you can provide medical providers with authorization to release your medical information to designated individuals. This authorization ensures that your chosen decision maker can access your medical records, enabling effective communication between them and your healthcare providers. Without this authorization, your doctor may be unable to share crucial medical information with your designated decision maker
