The first point about estate planning documents is that no two estates are the same, so every estate has different needs. Therefore, the documents needed for one estate may not be necessary for another estate. In this post, I will describe documents that lawyers commonly use in planning many estates.
Black’s Law Dictionary defines a will as “A document by which a person directs his or her estate to be distributed upon death.” Most estate plans include wills. When you die, the persons named in your will to receive your property will have to go to probate court to collect your property. You may revoke a will any time before you die.
Your will is essential in probate. Probate pertains to the legal process of distributing a deceased person’s estate, which validates the will. There’s no basis for legally transferring your assets to your heirs without probate. Furthermore, your estate continues to incur expenses, like insurance premiums and property taxes.
What are the requirements of probate? Your last will should have your signature and must be the original copy. Otherwise, additional documents will be necessary. Moreover, the other documents required for the probate process include vehicle titles, land titles, the prenuptial agreement, loan and lease agreements, income and gift tax returns, and the testator’s death certificate.
Hiring an estate planning or probate lawyer is advisable to ensure the legality, completeness, and proper implementation of the probate process and your will. That way, you have peace of mind knowing your beneficiaries won’t experience financial burdens and can live the lifestyle they’re used to even after your death.
A trust is a legal entity where one party (the trustee) manages property for the benefit of another (the beneficiary). The trustee is the legal owner; the beneficiary is the equitable owner (or beneficial owner). You may wish to create a trust for a variety of reasons: you may have a relative (such as a minor or a person with special needs) who can’t care for himself. You may want to ensure that someone else will manage your property if you become incapacitated. Also, because a trust can survive your death, you may create a trust that will pass your property to someone else when you die; if you create trust like this, your beneficiary will be able to collect the property without going to court. In a trust document, you may specify whether a trust is revocable or irrevocable.
Transfer on death deeds
A transfer on death deed (legal in some states) means just what it says: It transfers property to someone else when you die. If you create a transfer on the death deed, then, when you die, the transferee will automatically obtain title to the property without going to court. In most states, you may revoke a transfer on death deed any time before you die.
Joint tenancies with right of survivorship
If two or more persons own property as joint tenants with the right of survivorship, then, when one owner dies, the other owners automatically receive the deceased owner’s share. If you are the surviving owner in a joint tenancy, you may have to show the deceased owner’s death certificate to actually obtain title to the property.
You can even write a deed, transferring property to yourself, and another person, as joint tenants with the right of survivorship. This will also enable you to transfer property to someone upon your death without them having to go to probate court. One disadvantage of joint tenancy is that if you’ve conveyed the property to yourself and someone else as joint tenants, you may not revoke the joint tenancy without the other tenants’ consent. Also, if you convey property to other people as joint tenants, you can’t revoke the conveyance without the grantees’ consent.
One simple means of estate planning is to simply give people your property during your lifetime rather than wait until you die. This step is advisable if you’re sure you want to give away your assets to the right people or organizations, such as local sports leagues and charitable institutions. Many people take this route, especially those who have been diagnosed with terminal illnesses or those who are in their older years.
Contractual arrangements include life insurance plans, annuities, and employee retirement benefits. Many banks and insurance companies offer contractual arrangements that will allow you to transfer property to someone else upon your death.
Estate planning documents that take care of you during your lifetime
In addition to preparing documents that will distribute property upon your death, many attorneys and estate planning advisors will advise you to prepare documents that take care of you and your family during your lifetime. These documents include advance directives, powers of attorney, and nominations of the guardian.
An advance directive is a document where you specify what your wishes are regarding medical treatment if you become incapacitated. You may specify that you do or do not want life-sustaining medical treatment, or food and water, during your incapacity.
Powers of attorney
In a power of attorney, you give someone else the authority to make decisions regarding your medical care or your property. A durable power of attorney is a power of attorney that remains in effect if you are incapacitated. A springing durable power of attorney does not go into effect until you become incapacitated (that is, it “springs” into effect upon your incapacity).
Nominations of guardian
If you have minor children or adult children with special needs, you may want to nominate someone to be their guardian upon your death or incapacity. I generally advise my clients who have minor children or children with special needs to nominate a guardian.
Be wise – prepare well
The Bible says, “A good man leaves an inheritance to his children’s children.” (Proverbs 13:22). It’s wise to plan your estate, and it’s definitely wise to make sure that you plan properly. In addition to the common estate planning documents listed above, there may be certain fewer common documents that you need. If you haven’t planned your estate yet, contact an estate planning attorney today to see what your best options are.
Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. Kyle has years of experience assisting the residents of Bartlesville in a variety of legal matters including family law, civil law, and estate planning. Mr. Persaud holds a B.A. from Oklahoma Wesleyan University, and a J.D. from the University of Tulsa College of Law.