Updated June 11, 2021 · 10 min read
Need help getting started with your estate plan? This checklist will help you understand and keep track of the important documents and elements you'll need to consider. Treat it as an outline only.
Everyone needs some degree of estate planning. Estate plans must be tailored to the needs of the individual. The following checklist will outline the various types of estate planning documents, and help you evaluate those that will be of value to you.
Even if you decide to turn the matter over to an estate planning attorney, you should still have a basic understanding of what is involved.
Estate Planning Basics
A comprehensive estate plan should consider what happens in the event of both death and disability.
It should consider what you want to happen to your property upon your death, the financial well-being of your family, the degree to which probate can be avoided, and how to eliminate or minimize estate and inheritance taxes, confusion, and waste.
These goals can be accomplished through various means, especially properly setting up ownership of assets, designating beneficiaries where possible, and executing one or more estate planning forms.
In addition to financial matters, an estate planning checklist should also consider the guardianship of any minor children or any disabled dependents as well as planning for potential medical treatment.
Any asset that has a title document (real estate, motor vehicles, etc.) can be set up so that upon your death title automatically passes to a co-owner. Most often this is a spouse. The title document must clearly indicate that ownership is held as joint tenants with rights of survivorship, as tenants by the entireties, or as community property.
There are two potential downsides to adding someone as a joint owner. First, you the joint owner will need to agree to any sale of, or loan secured by, the property. Second, if the value of the property exceeds a certain amount, it could trigger the federal gift tax.
For some assets you can designate someone to receive the property upon your death, without giving them any current ownership rights. This is often done with bank and other financial accounts (usually called pay-on-death or POD).
Designating a beneficiary is available in almost all states for brokerage accounts, and in most states for real estate, motor vehicles, and other assets with title documents (usually called “transfer-on-death” or TOD).
Cover Your Debts
One way to ensure that all of your debts (including burial expenses) are paid in the event of death or disability, and that your loved ones are provided for, is through disability and/or life insurance.
Get a Last Will and Testament
A last will and testament covers all property that must be probated; that is, transferred upon the State’s approval or “proof.” Probate is a public scrutiny of willed property which also incurs a fee for the Probate Court’s endorsement, from 1.5% to 6% depending on the State. Probate can also be challenged by disgruntled heirs and provides a forum for financial claims against the deceased’s estate.
A will should also deal with the care of any minor children (or adult children with disabilities). You designate who will get any property that hasn’t been handled through joint ownership or a beneficiary designation, appoint someone you trust as the executor of your estate, and appoint someone you trust to be the guardian or conservator of your minor or disabled children.
A will may also leave assets “in trust” to certain heirs so that those funds are managed by a third party for the benefit of an heir. This is often wise for the very young or very old.
As a will is final, it often tries to cover all eventualities such as the death of the executor, primary beneficiaries, etc. Thus, a simple document can grow to unexpected lengths.
Consider a Living Trust
Especially if you have a large estate or many beneficiaries, a revocable living trust (“revocable” as you may revoke the trust at any time) is usually the best choice for handling property distribution, trying to avoid probate and minimizing delay and estate costs.
Property title is transferred from you to the living trust, and you become the trustee. While you are still alive, you control the property. You manage the property the same as if it was still in your name and may acquire more property and add it to the trust.
Upon death, a person you appoint as your successor trustee assures that the property is transferred to those you designate as trust beneficiaries. If your assets are correctly titled in the name of the trust, the transfer of assets to your beneficiaries should avoid probate.
The successor trustee would also manage the trust if you become mentally incapacitated. People sometimes create an irrevocable living trust—most often for Medicaid planning—which can also avoid probate but requires the person creating it to give up the right to revoke it.
Adopt a Financial Power of Attorney
A financial power of attorney authorizes someone you trust to act on your behalf in financial matters. The person who gives the authority is called the principal, and the person who has the authority to act for the principal is called the agent or the attorney-in-fact. Many states have an official financial power of attorney form.
Depending upon how it is worded, a power of attorney (or POA) can either become effective immediately, or upon the occurrence of a future event (such as your mental incapacity). If effective immediately, your agent may act even if you are available and not incapacitated.
If a POA becomes effective upon the occurrence of a future event, it is called a springing power of attorney, because it “springs” into effect when the event occurs. The authority conferred by a POA always ends at the death of the principal.
Execute a Healthcare Power of Attorney
A health care power of attorney designates someone you trust to make decisions regarding your healthcare in the event you are mentally or physically unable to make decisions for yourself. You should discuss your desires for medical treatment with your healthcare agent (sometimes called a surrogate).
Get a Living Will
A living will, also known as an advance directive, sets forth your wishes regarding what life-prolonging medical treatment you do/do not want in the event you become terminally ill or injured and are unable to communicate your wishes. A living will goes along with a health care power of attorney, as it can serve as a guide to your agent, or can express your wishes in the event your agent is unavailable at a crucial moment.
Make a Statement of Desires
This is not a legally binding document, but gives valuable information and guidance to your executor. It is really just a letter of instructions to your designated postmortem agent. It should include the information needed to clearly identify and locate all of your financial accounts, insurance policies, credit cards, vehicle loans, and mortgages. It should include contact information for relatives and close friends to be notified of your death; where assets are located (safe deposit boxes, storage units, etc.); and instructions regarding your desires for burial, cremation, funeral ceremonies, organ donation, etc.
It may also include your instructions regarding certain problematic heirs or sensitive bequests to family or friends.
Nothing is sadder than a widow's complaint that nothing was as expected or that so much money and time was wasted through the process of Intestacy -- dying without a will. In such event, State laws dictate who gets what in what percentages, appoints guardians, requires expensive bonding, and requires attorneys' fees. Want your heirs to remember the heartache of coping with relative chaos, or, of a quick, quiet, private transfer of assets with no fuss or bother? The answer should be obvious.
Want help getting started? Calculating or Designing the Plan? Give us a call to see how we can help you.