New Albany Estate Planning Attorney & Indiana Estate Administration Lawyer

A last will, sometimes referred to as a last will and testament, is a legal document that provides instructions as to what happens to your estate after you pass away. The last typically nominates a personal representative (sometimes called an executor), who is charged with going through the probate process and ultimately distributing the assets of your estate in accordance with the distributions you set forth in your last will.

All assets held in a person’s name and not otherwise subject to other transfer, on-death mechanisms (like a Pay on Death bank account) transfer pursuant to a will. Assets held in a trust do not transfer as part of the will.

A last will is only effective upon your death. As a result, if you become incapacitated, a court-appointed guardian and/or conservator may be needed, if you do not have a Power of Attorney in place to make life and financial decisions.

Most people think that when you plan your estate with a last will, their family will not have to go through the State’s probate system. This is not true. A Last Will will go through probate.

If you have a minor child (under the age of 18), a last will is a critical piece to your estate plan. The last will is where you, as the parent, nominate the guardian of your minor child if you pass away, and the other parent does not survive you. Every single parent should have a last will.

When planning with a revocable trust, the last will is important to be a safety net for any asset not titled into your trust’s name. This type of last will is known as a “Pour-Over Will”. A pour-over will goes through probate, but after the probate is complete, any asset not already titled in your trust will be poured into (also known as retitled) the trust – allowing the trust, and all of its protections and provisions, to distribute to your loved ones pursuant to the terms of the trust.

A revocable living trust is the centerpiece of most properly planned estates. A trust is created when a trustor (also known as grantor or settlor) gives assets to a trustee for the benefit of the beneficiary, or beneficiaries, of the trust. This is true for any and all types of trust. A revocable trust means that the terms of the trust can be changed at any time.

With the vast majority of revocable trusts, the grantor will fill all three roles (trustor, trustee, and beneficiary). When a revocable trust is properly and fully funded, it will avoid probate, enabling your family and loved ones to administer your estate without the bureaucracy and oversight of the State’s probate court system.

Further, a revocable trust is effective as soon as it is signed – this means that if you become incapacitated, the person you have selected to manage your affairs will step in as trustee. This removes the need to have a court appoint a guardian and/or conservator – once again, removing the State’s court system from your family and affairs.

Not every revocable trust is the same. The language that goes into each trust is important to ensure your goals are met, your values preserved, and ultimately, your legacy stays intact. By working through the Plitz Planning Process, you will have peace of mind knowing that your goals will be met, and your family will be taken care of.

Like a revocable living trust, the irrevocable trust holds assets for the benefit of a beneficiary. However, unlike the revocable trust, an irrevocable trust cannot be changed – the language of the trust is locked in place. Thus, irrevocable trusts are often used as gifting vehicles – such as a grandparent giving money to their minor grandchild.

Life insurance trusts are a form of irrevocable trust that are designed to hold life insurance proceeds. These are used in two primary situations: 1) when a person wants to have the death benefit (life insurance proceeds) pass outside the reach of an estate tax, or 2) when your estate is illiquid (such as when your main assets are real estate or farmland), and there is a need to provide liquidity to the overall estate.

Charitable trusts are designed to provide benefits to both your family and your favorite charity, while, when set up properly, gaining you an income tax benefit. If you are charitably inclined, and have highly appreciated assets, then a charitable trust may be the right technique for you to realize the associated favorable tax benefits.

Children (and adults) with special needs can require lifelong care, which often comes at an exorbitant cost. If you have a disabled or special needs child, it is critical to retain a special needs trust attorney to develop a special needs trust that will provide income for the special needs individual without reducing the government benefits available. A dependent’s age, healthcare needs, mental competency, and other factors should be thoughtfully considered, in developing the special needs trust.

As an experienced special needs trust lawyer, I can construct a plan that utilizes estate assets to enhance the life for a special needs child while ensuring that full government benefits remain accessible.

Your health care power of attorney is the document that authorizes the person you have selected (known as your agent) to make health decisions on your behalf when you are unable to do so for yourself.

Decisions about your personal health are critical. Whether you are 18 or 118, or any age between, everyone should have their Health Care documents (also known as Advanced Directives) in place. Advance directives need to be properly written so that your decision makers are not arguing with hospital administrators when critical health decisions are needed.

Absolutely.

Your living will is the document that directs your health care agent, in consultation with your treating physician(s), to make decisions regarding life support if you are terminal and can’t express your care wishes. Normally, these decisions will involve continuing life support, or only providing palliative (comfort) care.

Making critical healthcare decisions can be painstaking for loved ones. To avoid placing such pressure on those closest to you and to ensure that your wishes are met, a living will should be executed.

A financial power of attorney gives authority to the person you select (known as an agent) to handle your finances for any asset or debt in your name if you are unable to manage your affairs. In most cases, the power of attorney needs to be durable – ensuring that it will continue to work, even if you become incapacitated. Keep in mind that a power of attorney is given, not taken.

Probate, or probate court, is the State’s system to transfer assets from a dead person to living people or to charities or organizations. All assets owned by a person at death (except those in a trust or subject to transfer mechanisms such as “pay on death” accounts) are transferred through probate. If the decedent has a will, assets must be transferred in accordance with the will terms; otherwise, assets are transferred in accordance with state intestate law.

Probate is not always a bad thing, and in fact, at times it is needed or just really simple. But overall, the probate process introduces a level of risk – risk of “something” going wrong that can take more time or consume more money. And the biggest risk when you are in probate is that someone contests the proceedings. Unfortunately, Plitz Estate Planning does not handle contested matters.

However, if you are looking for advice and guidance to navigate through the probate process, we can help.