Fundamental Estate Planning in Kansas
Serving Individuals, Families and Farmers throughout Northwest and Southwest Kansas
There are a myriad of legal strategies you might consider implementing as you design your estate plan. Regardless, there are a handful of “must have” estate planning documents you must create before anything else.
What are these essential documents I must create without delay?
You should have: 1. A Will – everyone needs a will; 2. A Living Will—also known as an advanced directive—for decisions concerning treatment when you cannot make or communicate your own wishes; 3. Healthcare Power of Attorney and 4. Financial Powers of Attorney authorizing “agents” you know and trust to take care of your financial matters and make your healthcare decisions when you are unable to do so yourself; 5. a legal authorization that allows a loved one or friend to access your medical information; and 6. a trust (based on your situation) to manage, protect and eventually distribute your assets.
A will is a legal document that describes your intentions for your estate when you pass away. Without a will, a person would die “intestate.” In that case, state law divides and distributes the estate to surviving family members based on their relationship to the deceased. No consideration is given under state law to how “close” such family members were to the decedent (or if they fought constantly). Contrary to popular belief, a will has absolutely no legal authority until the maker of the will dies … and the will is given to the proper probate court within the time limit prescribed by state law. Accordingly, your will has no authority to appoint financial or healthcare decision-makers (agents) for you if you're incapacitated by an illness or injury (more on that later). In many states, a will is required to appoint the guardians (backup parents) in the event minor children are orphaned. What could be more important than appointing the people you want to raise your children if you are not around?
A Living Will, often known by other names such as an “advance directive,” is a document you sign now that specifies what you would want regarding life-sustaining procedures if you were unable to make and communicate your own decisions. This document can help avoid costly legal fights among family members who may all desire the best for you, but may have differing ideas on what that is. Everyone age 18 and older needs to have this fundamental legal document signed, a copy on file with their physician, and a copy given to each of their appointed agents.
Healthcare Power of Attorney
How does a Healthcare Power of Attorney help my family? A Healthcare Power of Attorney appoints the persons (whether in order of priority or as a team) you have selected to make healthcare decisions, so your family and the medical staff know what to do (or what not to do). This document can take some of the worry and anxiety out of your final days for your family, as you will be comfortable knowing you have chosen who will act on your behalf to make medical decisions if you are unable. With that in mind, choose your “point persons” carefully. They will be charged with carrying out some potentially difficult decisions and, perhaps, dealing with difficult family members.
Power of Attorney
This is a legal document giving another person—sometimes called “the attorney-in-fact” or “agent”—the legal authority to make decisions on business matters and other issues on your behalf. The exact scope of the power given is spelled out in the document itself. These powers cease when the maker passes away; they also may no longer be in effect when the maker becomes unable to make or communicate decisions, depending on how the document’s written. A “durable” power of attorney should be used in that situation.
Permission to Access Personal Medical Information
The Health Insurance Portability and Accountability Act (HIPAA) requires signed documents to allow people to access your health information. An HIPAA should be right on top of or specifically incorporated within your health care directive. It is your authorization for named persons to view your medical records and discuss your care with medical providers. Without this document or specific authorization, there is the possibility your doctor may decide not to speak to your designated “point persons”—the persons you want to make those tough decisions about your care if you are in an unresponsive state.
These come in all sorts of shapes and sizes. Generally speaking, a trust is a legal entity with at least three parties: the creator of the trust, the trustee, and the beneficiary. With most “revocable living trusts,” you are all three parties. Depending on your circumstances, there could be advantages to establishing a trust. The most common advantage is avoiding probate. This can help streamline administration of your estate should you become incapacitated and upon your death, keep your plans private in the process. Other advantages include privacy, flexibility, and asset management during any periods of incapacity. Some irrevocable trusts may protect trust assets from creditors. For example, trusts established under a will or revocable living trust can protect the inheritance for loved ones from squandering, divorces, lawsuits and bankruptcies.
What type of trust is right for you?
It depends on a great many factors. Consult the experienced estate planning attorneys at Graber & Johnson Law Group, LLC to thoroughly review your situation and your objectives.