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Estate Planning

Estate Planning

While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.  Proper estate planning not only puts you in charge of your finances, it can also minimize the expense, delay and frustration associated with managing your affairs when you pass away or become disabled. Still need convincing? Read Attorney Barbara Schlichtman's article Stop Making Excuses, and Start Making a Plan here

Providing for Incapacity

If you become mentally incapacitated, you won’t be able to manage your own financial affairs.  Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated.  The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent.  This process can be costly and stressful.  Even if the court appoints the person you would have chosen, they may have to come back to the court every year and show how they are spending and investing each and every penny.

If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home.  A Will does not take effect until you die and a power of attorney may be insufficient.

In addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care.  The law allows you to appoint someone you trust -- for example, a family member or close friend -- to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself.  You can do this by using a Power of Attorney for Health Care in which you designate the person to make such decisions.  In addition to a Power of Attorney for Heath Care, you should also have a Living Will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.  In Maine, we combine the Power of Attorney for Health Care, the Living Will, and some related planning instruments in a single document called an Advance Health-Care Directive.

Avoiding Probate -- In Part or Entirely

If you leave your estate to your loved ones using a Will, everything you own will pass through probate.  The probate court has jurisdiction over the process until the estate has been settled and distributed.  If you are married and have children, you want to make certain that your surviving family has immediate access to some cash to pay for living expenses while your estate is being settled.  It is not unusual for probate to tie up assets for up to a year or more while the Personal Representative determines the proper disposition of the estate.  If you haven't planned well, your surviving spouse may need to apply to the probate court for needed cash to pay current living expenses.  You can imagine how stressful that process can be.   With proper planning, some or all of your assets can pass on to your loved ones without undergoing probate.

That said, your loved ones' potential, specific needs must be kept in mind when designing your estate plan.  For example, long-term care planning for a surviving spouse almost always should involve a Special Needs Trust in your Will, so avoiding probate entirely would be counter-productive in such a circumstance.  It is essential to work with your estate planning and elder law attorney at the Maine Center for Elder Law, LLC to identify the priorities for your plan and to build contingencies into your documents to cover a variety of personal and health circumstances that may develop for your loved ones in the future.

Providing for Minor Children

If you are in your child-rearing years, it is important that your estate plan address issues regarding the upbringing of your children.  If your children are young, you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children, without the burden of work obligations.  You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters.  You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time.  A contingency plan should provide for persons you’d like to manage your assets as well as the guardian you’d like to nominate for the upbringing of your children.  The person, or trustee in charge of the finances need not be the same person as the guardian.  In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances.  Otherwise, the decision as to who will manage your finances and raise your children will be left to a court of law.  Even if you are lucky enough to have the person or persons you would have wanted selected by the court, they may have substantial burdens and restrictions placed on them by the court, such as having to provide annual accountings.

Other issues to consider in this respect include whether you’d like your beneficiaries to receive your assets directly, or whether you’d prefer to have the assets placed in trust and distributed based a number of factors which you designate.

Planning for Estate Taxes

No matter how heavily taxed you may think you are during life, the federal government and the State of Maine may want to review your estate at death to ensure you don’t owe each of them any estate taxes.  Whether there will be any tax to pay depends on the size of your estate and how your estate plan works.

Many states have separate estate and inheritance taxes that you need to be aware of.  If you own property in more than one state, your taxable estate may be subject to the taxes of more than one state.  There are many well-established strategies that can reduce or eliminate estate taxes, but you must carry out the planning process while you are alive and have the mental capacity to do so in order to implement these plans.

Charitable Bequests – Planned Giving

Do you want to benefit a charitable organization or cause?  Your estate plan can provide for such organizations in a variety of ways, either during your lifetime or at your death.  Depending on how your planned giving plan is set up, it may also let you receive a stream of income for life, earn higher investment yield, or reduce your capital gains or estate taxes.

A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding guardianship during your lifetime, probate at death, estate taxes and unnecessary delays.  Contact the estate planning attorneys at the Maine Center for Elder Law, LLC to review your family and financial situation, your goals, and to explain the various options available to you.   Once your estate plan is in place, you will have peace of mind knowing that you have provided for yourself and your family in case the worst happens. 

 

The Maine Center for Elder Law, LLC website provides general information regarding selected topics of Maine law only, and does not apply to any other state than Maine.  The information on the website is not intended as legal advice, is not guaranteed to be up-to-date at any time, and does not establish an attorney-client relationship with any reader.


The Maine Center for Elder Law, LLC, assists clients with Medicaid (MaineCare) Planning, Planning for VA Aid and Attendance Eligibility, Special Needs Planning, Estate Planning, and Probate, Estate & Trust Administration matters in York County, Cumberland County and nearby Maine counties.



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