How Important is a Living Will in a COVID19 Emergency?

How Important is a Living Will in a COVID19 Emergency?

The COVID-19 pandemic has completely changed the world as we know it. This virus has already claimed the lives of over 50,000 Americans, and unfortunately, it doesn’t look like the threat is going away any time soon. 

No one ever wants to think about what would happen if we were to become so critically ill that we couldn’t communicate our wishes. However, the possibility of this happening is more real today than ever before. As coronavirus cases continue to mount, doctors, attorneys, and financial advisors are all urging every American to ensure that they have created their essential legal documents, including a living will. 

What is a living will, and why is it so important right now? Here’s what you need to know. 

What is a Living Will?

First things first – a living will is a legal document that explains your personal choices about the procedures and medications you want (or don’t want) when it comes to end-of-life treatment. This document is often the only way for a person to communicate their wishes, as they may be unconscious or under anesthesia when the time to make the decision arises. 

It’s also important to understand what a living will is not. It’s not the same as a medical power of attorney (also known as a healthcare proxy). This is a document gives someone else the power to make medical decisions on your behalf. Many people choose to create both a living will and a healthcare proxy. 

What’s Included in a Living Will?

Your living will should include a summary of your wishes when it comes to the most common types of medical treatments. This often includes:

  • Cardiopulmonary resuscitation (CPR) – resuscitation if your heart stops beating.
  • Mechanical ventilation – intubation if you’re unable to breathe on your own.
  • Antibiotics or antiviral medications – aggressive medical treatment of infections.
  • Dialysis – treatment for kidney failure
  • Tube feeding – nutrition and fluids provided intravenously or through a feeding tube placed in your stomach.
  • Comfort (palliative) care – this can cover a wide array of pain management and comfort interventions at the end of life. Some examples include avoiding invasive tests and treatments and being able to die at home.

For each of the items listed above, your living will should indicate whether you want to receive the treatment, and, for treatments like dialysis and tube feeding, how long you wish for it to continue. 

Your living will may also address whether you want to be an organ or tissue donor and if you would like to donate your body for scientific study after you die. 

When Does a Living Will Go into Effect?

If you have a living will in place, it’s important to make sure that your doctor has a copy so it can become a part of your medical records. If this hasn’t happened, you or someone else can also provide a copy when you arrive at the hospital or at any point up until the decisions have been made. 

For a living will to go into effect you must (1) still be alive, (2) be incapacitated or otherwise unable to communicate, and (3) be in terminal condition (unlikely to recover). It’s also important to note that a living will overrides a medical power of attorney (POA). This means that if the person you’ve designated to make medical decisions on your behalf wants something different from what’s written in your living will, their request will be denied. 

Why a Living Will is So Important During COVID-19

A living will is an important document that everyone should have in place. Accidents and illnesses happen all the time, and having this document in place gives you extra peace of mind. However, during this COVID-19 crisis, it becomes even more critical. Here are a few reasons why. 

The Threat is Very Real

Unfortunately, no one is safe from this virus. There are documented cases in every state in the country, and it can affect people of all ages. Since the virus is often carried by people who don’t have any symptoms, you never know when you could be exposed. 

Many people put off creating important documents like this because they’re young and healthy and don’t see a need for it. Others don’t want to think about the possibility that they could become critically ill and possibly die, so they avoid the topic entirely. However, now is the time to face the fact that this threat is very real. 

It’s well known that COVID-19 causes life-threatening respiratory conditions and extended hospital stays. If you’re infected, there’s a very good chance that your healthcare providers will need to make some of these important decisions. You’ll want them to know your wishes when they do. 

Your Medical Power of Attorney Will Face New Challenges

If you have to go to the hospital for coronavirus treatment, there’s a very good chance that your loved ones won’t get to see you in person again until you’ve either recovered or passed away. Most hospitals are not allowing visitors, which will make it much more difficult for the person you’ve designated in your healthcare proxy to make sound decisions. 

Of course, he or she can be reached over the phone and can make decisions based on the information provided by your medical team. However, without being able to see your condition with their own eyes, each decision becomes that much harder. Having a living will on file gives your physicians the proper guidance and can take some stress off of your loved ones. 

Important Coronavirus Considerations 

If you don’t have a living will and a medical POA, now is the time to get these important documents in place. However, even if you do already have them, you may want to consider having them reviewed in light of a few unique circumstances created by the current coronavirus crisis. 

Communication Issues 

While most healthcare proxies give your medical POA broad authority regarding communication, it’s not a bad idea to add language that explicitly allows medical staff to communicate with your POA over the phone, by email, or through video conferencing. This will help avoid the possibility that problems could arise at a critical moment. 

Intubation Decisions 

The second issue is much more serious, and it involves the use of a ventilator. Many patients with severe cases of COVID-19 end up needing to be intubated. This allows a ventilator to provide your body with oxygen when you’re unable to breathe. 

While your living will may state that you do not wish to be intubated, technically this should only go into effect if you’re considered terminal, that is, if the doctors believe there is very little chance that you’ll recover.

In the case of COVID-19, there’s a possibility that you could go on a ventilator temporarily and then make a recovery. This means that the physicians are now faced with making decisions, hour-by-hour, regarding whether a patient who needs to be intubated actually has a chance of recovering. If the chances are slim, this is considered an invasive procedure and would often fall under the terms of the living will. 

On the other side, there’s the concern that you may not receive a ventilator when, in fact, you would have wanted one. This is particularly concerning in light of conversations about ventilator shortages and speculation that rationing could even come into play. It seems that this concern has passed in the United States at this time, but there’s always a chance it could arise again. 

Considering just how critical this issue is – often literally a matter of life or death – it makes sense to add language into your living will to make your wishes clear specifically in the case of a coronavirus diagnosis. This way, you can be 100 percent sure that your legal document reflects your true intent. 

In addition to ensuring that you’ve created or updated your living will and provided a copy to your physician, it’s also a good idea to talk to your loved ones about your wishes. Although this is an uncomfortable conversation to have, it’s extremely important, especially now. 

Create (or Review) Your Living Will Today!

If you don’t have a living will yet, now is the time to do it. It’s possible to create this document yourself using a form provided by your physician or local hospital or online legal document creation software.

If you choose any of these routes, however, you need to make sure you understand your state’s specific requirements. Some require a witness and/or notary, which could present a challenge during times of social distancing. In this case, however, it’s still better to have a document drawn up than to have nothing at all. Due to the extreme importance of this matter, many people choose to have an attorney draw up their documents instead.

Lilac City Law is here to help you should you decide that you need assistance. Give us a call at 509-624-1610 or complete our online form to schedule a consultation. We’ll answer all of your questions and help ensure you have everything you need to protect yourself during this uncertain time.

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12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

Estate planning can be one of the most important things you do for your family’s future, but it can also be overwhelming. Between heavy subjects you don’t want to think about, the need to do a lot of paperwork, and everything else going on in your life, it can be too easy to keep putting off your estate plan until later. The problem is you never know when you will need it. Get started before it’s too late by doing just a little bit at a time.

January: Determine Your Goals

Who do you need to take care of? Do you have a spouse that relies on your income? Children that still need an education? Grandchildren that you want to give a head start in life? Charities or other important causes that you wish to support?

Your estate plan isn’t a chore you have to check off to be a responsible adult. It’s something you want to do to achieve your goals. There are many types of estate planning tools available that work best in different situations. To pick the right tools, you need to begin with a plan for what you want to do — just like drawing up the blueprints for a house.

February: Take Inventory

After you know who you want to support, you need to know how you can. What assets do you have? Your home? Cash savings? Investments? A business? Family heirlooms?

When you divide your estate, you may wish to provide some loved ones with financial support and others emotional support in the form of specific items that will mean more to them. It’s also important to understand that if you have any debts, your creditors will take precedence over your heirs, so you need to account for those as well.

March: Create a Will

Wills are the most common estate planning tool because they are the simplest way to ensure that each of your loved ones is cared for in the way that you’ve chosen. You can create a will on your own, but there are some legal technicalities that could leave your will open to challenges or having some of your wishes not honored. An estate planning attorney can help you avoid those complexities. Even if you plan to use other estate planning tools, having a will is still a good catchall for things that may not otherwise be covered.

April: Name Beneficiaries

When you name beneficiaries on your bank accounts and investment accounts, those accounts automatically go to your chosen beneficiaries upon your death. This allows those beneficiaries to receive financial support without having to wait for your will to go through probate.

The main benefit to taking this step is so that any family members who need immediate financial support can receive it. For example, if they relied on your income to cover their living expenses, they may not have enough money to buy groceries or to make rent or mortgage payments on your home that they continue to live in.

May: Consider a Trust

A trust is another way to keep assets out of probate and transfer them directly to family members. Again, the goal is to skip the weeks or months of delays it takes to execute your will in probate.

A trust can also be used to ensure that the funds you leave go towards your intended purpose. You may leave a trust for your spouse’s living expenses or your children’s schooling. You may also restrict your children’s or grandchildren’s access to their inheritance until they are older and wiser and will hopefully put it to good use.

June: Plan for Your Healthcare

In addition to planning for what happens after you’re gone, you also need to have plans for what happens if you can’t make decisions for yourself while you’re hospitalized for a serious accident or illness. Even in close families, family members may disagree about what you want, and doctors may not be able to legally follow their instructions.

To ensure your wishes are honored, consider a living will, advanced healthcare directive, or medical power of attorney. These documents allow you to designate a trusted loved one to make decisions on your behalf with full authority. You can also include any specific treatments or end-of-life options that you want your agent to request on your behalf.

July: Designate a Financial Power of Attorney

Like the person you select to make your healthcare decisions, your financial power of attorney will step in if you’re unable to manage your finances. A full durable financial power of attorney gives your agent the ability to manage your bills and assets if you’re ever temporarily or permanently incapacitated.

You can also use a financial power of attorney when you’re still able to care for yourself to some degree but need extra help with certain tasks. For example, you might sign a limited scope power of attorney allowing a loved one to manage your checking account and pay your bills.

August: Look Into Life Insurance

Life insurance is another tool you can use to provide for your family financially when you’re unable to. Many working people opt to buy a policy large enough to replace their expected future income to protect their spouse’s and children’s lifestyles that were planned around that income. You can also use life insurance to guard against things like medical debts from reducing what you can leave to your family.

As with your other assets, you will need to name one or more beneficiaries in your life insurance policy or provide for the cash value of the policy when you write your will.

September: Plan for Estate Taxes

Estate taxes generally only affect families with multi-million dollar net worths, but you still need to be aware of them. Estate taxes can be particularly devastating when your net worth is mostly in real estate, a business, or other non-liquid assets. This type of situation often forces a family to sell a treasured home or multi-generational business to pay the tax bill. By planning how you structure your estate ahead of time, you can avoid taxes or at least make sure your family will have the ability to pay them.

October: Protect Your Business

In one sense, a business is like any other asset. You can leave it in your will to a loved one, or it can be part of your general estate to be divided up between your heirs.

However, businesses also have to be maintained if they are to continue to provide for your family. The death of an owner or key employee can be highly disruptive to the business and possibly even put it out of business. You should create a succession plan that provides for continuity of operations no matter what happens and that also gradually prepares your loved ones to follow in your footsteps if that’s your goal.

November: Organize Everything

Your estate plan is no good if no one knows about it to put it into action. Keep all of your important documents together in a fireproof safe that your family knows the location of. You may also wish to leave copies with your attorney or in a bank safe deposit box. Again, tell your family.

When you have a medical power of attorney or financial power of attorney, give copies to your doctors or banks in advance. Don’t forget to give them updated documents if you change or cancel your existing plans.

December: Review Everything Each Year

When you stop to reflect on another year gone by, think about how the changes during the year will affect your family’s future. New children may be born, others may grow up and no longer need as much help, and you may have new wealth to consider. While you don’t need to redo your estate plan every year, you should update the relevant portions of it after major life changes so that it continues to meet your goals for your family.

Estate Planning with Lilac City Law

Lilac City provides a full range of estate planning services and can help you develop a comprehensive plan for you and your family. We can help you put it together over the next year or help you get it done even faster. To learn more, contact us now to schedule a consultation.

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Disinheriting a Child and Other Considerations of a Last Will and Testament

Disinheriting a Child and Other Considerations of a Last Will and Testament

Leaving your children out of your will is not a decision that is taken lightly. But sometimes there are considerations that you need to make that make it the more prudent decision to leave them out of your will. If you decide to disinherit children, it is something you should do as soon as you make the final decision, which will give them less of a chance to contest it and end up with an inheritance you didn’t want them to receive. 

Things You Should Consider Before Choosing to Disinherit 

You should never use disinheritance as a tool for controlling your child’s behavior. Trying to control a person or situation with money can often lead to bad feelings and bad blood. While there are valid reasons for wanting to disinherit your child, you might want to look at the other possible options first to see if they could be the right fit before choosing to cut your child out completely. Other options you might want to consider before disinheriting your child include:

Controlling Their Inheritance Through the Use of a Living Trust

If you want to allow your child to have money but control how and when they get it, or what they use it for to ensure it is used responsibly, a living trust may be the better option. You can set up a trust to divvy out the money in small amounts over a period of time or have the funds directly sent to pay bills. You will need to provide the trustee with precise instructions on how, when, or for what the distributions can be made. This may be the ideal option for those who are considering disinheriting for fear of the money being wasted. These trusts can even include milestone incentives such as payments for going to college. 

Providing the Power of Appointment to Someone Else

You can also choose to provide a trustee with the power of appointment, which can allow your child to re-inherit if they meet certain terms or conditions. This means that the child will have the right to earn their portion of the estate back as long as the trustee of a lifetime trust is given the instruction to allow this to happen. 

How to Write Your Children Out of Your Last Will and Testament

Following a few simple steps can make disinheriting your child a little easier and help provide the best chance for your last wishes to be followed. You will need to:

1. Create a Will

While this sounds simple, many people may communicate their last wishes to family members, but not put the information formally down in writing. Failing to have a will in place means that your estate will pass through intestate succession upon your death. When this occurs, the estate will most likely split up between a living spouse and children. Once you have drafted a will, make sure that it is witnessed and notarized. Then place it in a safe place where the person in charge of executing your estate will have access to it. 

2. Indicate the Deliberate Disinheritance of the Specific Child or Children

Just not mentioning the child can leave the will open for interpretation and subject to being contested. The disinherited child could claim you forgot to put them in, and since they were omitted and not explicitly listed as being disinherited, it may give them a chance in the court system. Acknowledge the specific child or children by their name in your will and add a statement saying that for certain reasons, you have decided to make no provision for them or their descendants in your will. This will provide the support that you had intentionally meant to leave them out of the estate split. 

There are two things that you will need to consider when wording this in your will. First, leave the reason vague, such as “for reasons known to me.” If you state a reason, you open the door for the child to say that that reason is no longer valid. For example, if you said the disinheritance is because they have finances to meet their needs, they could prove that they no longer have the money to keep themselves financially stable. You also never want to leave a child an amount that basically amounts to leaving them with nothing. Doing this will give your child access to the estate information without having to file a request with the court. 

3. Inform Them of Your Decision

It is always best to not make this a surprise that a child learns upon your death. While this can be awkward, it will make the process smoother as they will have more time to get over the initial frustration if there is any and not make any hasty decisions without thinking it through. This is especially important if your other children will be receiving money. It can reduce the chance of the will being contested and bad blood to develop between siblings. The one case where informing your child will not be necessary is if you have been out of contact with them for a significant amount of time. They are likely not to be shocked about not being included in the will at this point. 

4. Update Your Will if You Reconsider

Things may change over the years since you have written your will, and the child’s circumstances may have changed as well. If you decide that you want to put them back in your will, be sure that you update the will as soon as you reconsider. If there is no amendment to your will, it is likely the original intention will stand, and your child will not have a claim to any of your estate. 

Common Challenges for Contesting a Disinheritance in a Will

When adult children contest a will, they will usually use one of three main challenges. Knowing what these challenges are will better help you to understand how to handle your will to provide the best defense against the challenges. The common challenges include:

Undue Influence

A challenge of undue influence may be presented by a disinherited child if they feel that the disinheritance was swayed by another party. This means the contestor felt that the testator was under pressure from someone outside of the natural heirs to cut them out of the will. Undue influence often occurs when a third party threatens force or embarrassment to the testator if they do not comply with their requests. For this type of challenge, there is no need to prove the mental state of the testator when they were writing their will but instead show that they are likely to have made a different decision if they were not under the influence of the other person to sign the will. Though the contestor will likely need to have either medical or psychological records, as well as witness testimony to show the influence on the testator. 

Lack of Capacity to Create a Testament

Under this type of challenge, it is alleged that the testator did not have the mental capacity to make the will. Contrary to what many people may think, this challenge is not easy to prove. The court requires substantial evidence to confirm that the testator was not of sound mind when they drafted the will. Time also makes this challenge difficult, because if the will was signed many years before, the court would require medical evidence from the time that the will was signed, that the testator lacked mental capacity. Lack of capacity can be even harder to prove if the will was signed in a lawyer’s office since they are extremely cautious about a testator’s mental state when signing any documents. 

Improper Execution

If you are drafting your own will, there is a possibility that your disinherited child could challenge it based on improper execution. There will be specific laws to follow depending on the state you file in, but most of the time, you will need to be at least 18, of sound mind, and in the presence of two witnesses who have no financial interest in the will. The witnesses must be in the presence of the testator, and all must witness each other sign the document. You can lessen the likelihood of a challenge of improper execution by speaking with an experienced legal service to ensure that you have followed the protocols required by your state.

Disinheriting a child from your will is not a difficult process, but one where legal advice may help make the process smoother. If you are unsure of the requirements for executing a will in your state, contact a legal service to ensure that you have everything completed and filed properly to ensure your final wishes are fulfilled in the want them to be. 

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Revocable Trust or Irrevocable Trust: Which One Do You Need?

No matter what happens throughout your life, you are going to leave behind assets for someone when you die. You should always leave behind a legal document to guide how to distribute those assets. Another thing you should do to protect your assets is to put your assets into a trust.

Knowing which trust to go with can be complicated. The differences between revocable and irrevocable living trusts are small, but they can also have huge impacts.

Keep reading below to learn which would probably be right for you.

A Revocable Living Trust Means More Flexibility

With a revocable living trust, you can plan for the future while adapting to the present. Situations can change after you put together a will that may affect how you want to distribute your belongings. When you get a revocable living trust, you can adjust your last wishes as you want.

Keep reading below to learn more about the advantages of getting a revocable living trust.

You Can Change What’s In It

The biggest advantage of a revocable living trust is that you can change what goes into it.

You can set up different trusts for different people, and adjust how much goes into each. That way, you have complete control over how your assets are distributed among your loved ones, without anyone interfering.

You Will Not Have to Deal with Probate Court

One of the things that can interfere in how your loved ones get the things you leave behind is probate court. This is a specialized court that handles the property and debts of deceased persons. They usually have the final say as to how things are distributed after a person dies.

With a revocable trust, you can rest assured your property will not ever be touched by the courts. Instead, it will simply go into the hands of your designated beneficiaries.

An Irrevocable Trust Is a Safeguard

Unlike a revocable trust, you have less control over irrevocable trusts. Once you put things into an irrevocable trust, you can never take them out. That means that if a situation changes, you will not be able to adapt to it or control who gets what, so make sure you are confident with what you put into one.

Yet, an irrevocable trust protects your assets from creditors. If you leave behind debt, creditors may try to pay for it by seizing assets before your beneficiaries get them. You can prevent this by storing them in an irrevocable trust.

An irrevocable trust is entirely irrevocable. Once something is in it, it is there to stay no matter what creditors or you have to say about. 

You Should Trust the Trust You Choose

No matter which kind of trust you decide to go with, make sure that you trust who you elect to be in charge of it. Whether it is an irrevocable or revocable living trust, it has to be handled by someone so make sure you trust that person to handle it honestly and carefully.

And for that, we are here. Contact us, and we will show you how we can help you establish a trust for your loved ones, and why you should trust us to help you!

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Who Will Help You Take Care of Your Estate If You Become Incapacitated?

You have provided for and protected your family for many years. However, when your children grow into adulthood, you will still have a legacy to protect.

You will want to make sure that your estate remains a testament to your dedication and hard work and serves the needs of those you leave behind.

But what happens if you are only incapacitated rather than passing away? Incapacitation can happen to anyone at any age, but for those of us in our golden years, becoming incapacitated at some point is all but inevitable.

Unfortunately, there is no one-size-fits-all plan to protect you if you become incapacitated.

That is why it is a good idea to understand all the preparations you can make and services you can access to help protect your estate should you lose the ability to manage it alone — either temporarily or for the long term.

The following is a list of legal provisions and tools you can use to help ensure your estate is taken care of if you should become incapacitated or die.

Last Wills and Testaments

A last will and testament is a legal document that contains the final wishes of an estate holder regarding his or her dependents and possessions.

A last will is written while the estate holder is alive and in a sound state of mind. It names an executor whose job it is to administer the estate and to follow the estate plan.

Should an estate holder die without drafting a valid will, he is said to have died “intestate.” The state becomes the executor of the estate.

There are several legal implications to be considered when drafting your final will. It is best to consult an attorney to assist you in writing your last will in a manner that guarantees your estate is settled following your wishes.

Trusts

A trust is a fiduciary agreement that assigns a trustee to hold specific assets on behalf of one or more beneficiaries. Traditionally, the purpose of a trust is to minimize the tax liability of an estate.

A trust is usually designed to avoid probate, which can compromise the privacy of an estate holder and can be a lengthy and expensive process.

A trust gives you the ability to ensure your wealth is managed according to your wishes — to protect your legacy, ensure privacy, and save money on the probate process.

There are many different types of trusts, each with their features and benefits. It is best to consult with an attorney to help you choose the type that suits your needs.

Health Care Powers of Attorney

If you should become incapacitated, you may be unable to communicate your wishes regarding your health care. A health care power of attorney is a document that designates a specific person as holding the authority to speak for you in matters of health care.

Many people assume they will not lose the ability to communicate should they become infirm, are injured or are otherwise incapacitated. Unfortunately, this is not always the case. A family member, trusted friend or an attorney can be given health care powers of attorney.

Financial Powers of Attorney

Financial powers of attorney are similar to health care powers of attorney except that they concern financial matters rather than health matters.

If you should lose the ability to communicate, they give someone permission to make financial decisions on your behalf.

Other Powers of Attorney

Powers of attorney give the designated holder more than just the ability to speak for you should you lose the ability to communicate. It can also allow the “agent” or “attorney in fact” to access accounts such as a bank account or retirement account.

A durable power of attorney is used for property management and can help alleviate the costs associated with guardianship or conservatorship.

There are several types of powers of attorney, including those discussed above. A lawyer who specializes in estate law can help you decide which is best for your needs.

Guardianship Nomination

A guardian nomination is a document that describes how you wish your minor children to be cared for if you and/or the other parent lose the ability to provide care. It specifies who can be appointed to care for your children and to act as a legal guardian and how care should be given.

Guardian nomination goes into effect after both natural parents lose the ability to provide care.

The dictates of the nomination must be written within the confines of the law for it to be recognized by the court as valid. Your attorney can help you to draft a guardianship nomination that meets the legal standard.

Inheritance

Inheritance is what your dependents receive if you pass away if you have not provided a last will. Inheritance laws differ from one state to the next, and they leave much to the whim of the state.

It is ideal to have a last will to ensure your estate gets settled in the manner of your choosing. However, an estate lawyer can help to ensure that inheritance is dispensed appropriately if necessary.

Heirs

Your legal heirs are anyone who receives ownership or interest in your property, land or hereditaments should you die intestate. In most cases, these are your spouse, children, or other close family members.

Of course, if you do die intestate, the state will take control of your estate and determine who will receive what and how much.

As always, it is better to work with an estate lawyer who will help you draft a last will that ensures that your heirs receive hereditaments per your wishes.

Probate

Probate is the process by which your will is proven to be valid. The validity of wills is decided by a probate court and can be a lengthy and expensive process.

The court’s job is to attempt to ensure that no fraud or undue influence was involved in the drafting of the will. It is possible to avoid probate through beneficiary designations or the use of a revocable living trust, among others.

Working with an estate attorney is the best way to ensure your will is written and delivered in a way that will make it abundantly clear that it is indeed your own and not that of anyone else — or that it was written under some undue influence.

Conclusion

These indispensable parts of your estate-planning toolkit, working together, can ensure that your estate is settled following your wishes. Do not let the state take ownership of your legacy, and do not leave it up to chance. To learn more, get in touch Lilac City Law and secure the future of your legacy today.

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Living Trusts vs Wills: What is the Difference And What is Best for You?

You have worked hard to secure your future and those of the people you love. You want to control what happens to your assets after you die.

There are several approaches to making sure your assets are dispersed consistently with your requests.

Maybe you have heard of these two legal instruments, but no one ever explained how they are different to you.

So, what is the difference between a living trust vs. will

Read further to find out which approach to estate planning is best for your situation.

What Is a Trust?

These tools are sometimes called living trusts because they provide both before and after death asset management.

A living trust allows you to specify where your assets go and when your heirs can access them. You can also use a living trust to manage your property in the event you become injured or disabled and cannot do it yourself.

Living trusts are categorized as either revocable or irrevocable. A revocable trust means you can change the terms any time during the grantor’s life. Irrevocable trusts require you to permanently surrender any rights to revise the trust after it is established.

What Is a Will?

A will is a written legal document that specifies how you want your assets dispersed after you die. A will can be canceled as well as revised at any time during your lifetime. Wills identify a guardian for your kids in the event of your untimely death.

Will vs Living Trust; What’s the Difference?

Both wills and trust are similar in that they address your plans to distribute your property once you die. Before you choose one, study these following differences to find which works better for you:

Probate Court Proceedings

Wills are subject to probate court proceedings. Probate is a division within the judicial system that ensures that a deceased person’s property is allocated to the right beneficiaries. The court will also make sure that the deceased’s debts are all paid off.

Public Disclosure of Information

Certain cases filed with a court system can be viewed by the public. Probate cases are one of them. When a will is submitted to the court, anyone case request to see the filing at the court clerk’s office and view what’s included.

Information included in living trusts stays confidential. Only beneficiaries who have access to trust files can see this information.

Living Trust vs. Will: Which One is Best?

So which method is best for you? Here are some considerations that might influence your decision:

Marital/Family Status

If you are married, wills can transfer your assets to your spouse. If you have young children, a will can transfer their guardianship if both parents pass away.

Current Health/Age Status

Living trusts are not necessary for those who are healthy and at middle age. They set parameters to manage your care and property in case you are not able to.

Time Commitments

Managing a living trust can be a big time commitment. Living trusts can only disperse assets that you actively place into it. You must continually change legal ownership of all your assets like your cars, bank accounts or businesses to the name of the trust.

Types of Assets

If you own a business or other enterprises, you do not want to tie up operations while probate matters are finalized. Sometimes probate cases can take years to settle.

Next Steps

Are you planning your estate? If so, check out these helpful estate planning worksheets to help you through the process. If you are still unclear about a living trust vs. will, give us a call.

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Top Three Advantages of a Living Trust

We cannot avoid death, but we CAN plan for it.  That said, only 60% of Americans have made a will or living trust to help those they leave behind.

When it is time to complete your estate planning, give strong consideration to creating a living trust.  A living trust provides for distribution of your assets according to your instructions.

But what other reasons are there for choosing a living trust for asset distribution?

That is the subject of today’s article as we reveal the three biggest advantages of a living trust.

A Living Trust Avoids Probate

The most significant advantage of a living trust is that it enables your estate to “bypass” probate

Probate is the court-supervised process that allows for the dispersal of your assets according to your instructions by your executor.  All wills must go through probate, a process which can take several months or even years.

A living trust, on the other hand, is not subject to probate.  As such, your family only has to wait for a few weeks to receive any death benefits, saving them considerable time.

Your successor trustee must pay your debts and distribute your assets as you wish.

A Living Trust Maintains Your Privacy

A will is a public document.  That means the information contained in your will is a matter of public record.  Anyone can search public records to find out about the distribution of your assets.

A living trust, on the other hand, is a private document and the information therein remains private.  A living trust is strictly between you and any parties involved, and your estate is distributed in private.

A Living Trust May Save Money

While creating a living trust may cost more than drafting a will initially, upon your death it may save your survivors considerable money.

When you set your living trust, the first thing you must do is fund the trust.  In other words, you need to transfer all your financial accounts and certificates to the trust through legal documents.

Other items must be considered as you establish a succession plan for your estate.  You’ll need to change the beneficiaries on any life insurance policies to your trust.  You will also need to make arrangements for your IRA or 401k plan.  

Finally, you must create a pour-over will which provides instructions for assets which are acquired between the time your living trust is created and your death.  A pour-over will also covers assets you may have overlooked or excluded from your living trust.

As you can see, there is some initial time and money that must be invested in the creation of your living trust. 

However, your survivors will be grateful for your efforts because it will likely save them time and money.  Your assets will not be subject to probate and they will be able to settle matters in considerably less time. Probate costs are taken from the will, something your heirs can avoid with a living trust.

Advantages of a Living Trust: The Bottom Line

Remember, planning for the distribution of your estate is a gift to your loved ones.  It relieves some of the pressure during a difficult time by providing clear instructions for the distribution of your assets.

Young couples with no children or those with a small estate may benefit from a simple will.  However, if you have assets and wish to pass them on to your heirs, you may wish to enjoy the advantages of a living trust.

If you found this article helpful, please check out more of our estate planning content. Or contact us, below!

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Celebrate Your Military Family, Improve Your Military Will

Celebrate Your Military Family By Improving Your Military Will

There’s an old military adage that says, “No good plan survives engagement.” 

While this quote’s timelessness must lend credit to its applicability in battle, it transcends its martial roots and applies equally as well to law.  Especially Estate Law. 

Take for instance the idea of a Last Will and Testament.  A Will is probably the most well known and well-understood items in an estate plan.  The purpose of the Will is to make sure your assets go where you want them to go after you pass away.  It need not be too complicated, and in many cases, Wills have been as simple as notes scratched on a piece of paper from the deathbed of the person writing the Will.  <- We do not advise this, but if it is a bad idea and it works, is it indeed a bad idea?  

Today, and this month, we are celebrating the Month of the Military Kid.  As a law firm, this got us thinking, what can we do to celebrate?

 Share updates and resources, check.  Spread the good word, check.  Educate…  we can do that!  That is what this blog is all about.  Getting good information, usable information, from our brains and into a forum (this forum!) where readers can make informed decisions.  In that spirit, the purpose of this article is to answer for Veterans and those still serving, why their Military Will is not enough protection for their family, and show them how to fix this.  

Your Military Will Just Is Not Enough

It’s not your fault, and it is not a bad start.  But the hard fact is, your military Will is not enough protection for your family.  Here’s why.

As we mentioned above, a Will of any type is designed to designate who will get your assets when you pass.  The process begins with your death and then must go through a legal action known as probate.  Probate is the bane of estate planners for several reasons.  The top of these reasons being time, cost, messiness.

Probate is an Unnecessary Pain

Death is a hurry up and wait process when probate is factored in.  You are scrambling around trying to figure out last arrangements (if you haven’t set up an estate plan ahead of time), trying to figure out the finances of paying for burial or cremation, ceremonies, and getting family and friends together.  Then, you have all the assets of the deceased to figure out what to do with.

Houses, cars – are they owned?  Who has the right to sell them? Trinkets, storage items, family heirlooms, tv’s, jewelry, books, intellectual property, investments…the list is endless.  And it is going to take 6-9 months to figure out who has the right to even make decisions on these assets.  That is 6-9 months to work through probate, assuming the issue of ownership is uncontested!

Let’s set aside the time suck that is probate on Willed assets and work our way through costs.  Get ready to pay up to 10% of the assets of the estate just to transfer them to where they are supposed to go!

If you are keeping track that’s thousands of dollars and 6-9 months so far.  Again, IF the declarations in the Will are uncontestable.  Do you have an ex-wife that owns half your house but your adult kids and your current fiance’ are the ones named to inherit your assets in your military Will?  How’s that going to be settled?  Who is going to help you (or really them) to figure it out?  And how much is it going to cost?

Wills In the Military

Being honest, we are pointing out the drawbacks of Wills because there is another way for young families to prepare for the future. An approach that can release them & you from the turmoil of probate, the financial burden of an unnecessary legal process, and avoid the messiness of contested assets altogether.   So why does the military get service members set up with Wills in the first place?

For one, Wills are relatively straightforward and easy to set up en masse.  Did your command order you and 100 other people to set up your military Will through JAG?  Was it a pre-deployment Will or something set up for family day?  If so, it may be very limited in scope and entirely out of date if any one of a hundred or more things have happened since it was penned.

New kids, new property, new assets, new marriage situations, and more are all reasons to update a Will.  And in reality, updating a Will is not as simple as crossing off an outdated item and adding a new issue.  You are likely going to have to re-write the whole thing.

So, while military Wills get the job done, temporarily.  They do not grow with you and your needs, and if it has been a year or more since you established yours, you need another option.

Another Option – Let’s Talk Total Estate Planning

Wills are a means to an end and can be effective if you use them in the right way.  However they do come with drawbacks, and for a young military family, there are strong reasons to consider other paths for estate planning.  Especially, trusts, powers of attorney, and other options.

Recall from this discussion some of the drawbacks of Wills, and particularly military Wills.  

  • To transfer assets upon death requires probate, which can take 6-9 months;
  • Probate can cost up to 10% of the assets of the deceased;
  • Disputes over the Will can lead to painful situations which are only solved in probate court; and,
  • Wills only cover items and beneficiaries specifically.  Any change to your situation and family might change the whole dynamic of the military Will.  

A trust on the other hand

  • Can transfer assets almost immediately upon death, or even before passing if it is set up to do so. 
  • Will not require anyone to pay lawyers or a probate court.  Once the trust is set up the only cost is modifying it, if necessary.
  • Trustees (recipients of the trust) are decided between you and your estate lawyer when drafting and updating the trust.  It is very clear who your trustee(s) will be and under what conditions they assume control of the trust that your assets have been placed in. 
  • You can set up your trust to be disbursed to certain people in certain circumstances.  If you want your brother to receive part of your assets upon passing but not his spouse, you can make that a condition at any point.  
  • Lastly, a trust is private.  The process of going through probate opens up the details of your assets to the public eye.  Your beneficiaries could have unscrupulous suitors showing up at their door if you have a sizable estate to pass on.  A trust being disbursed to the trustee(s) in the manner you wanted is not handled in the public eye.  

Should You Scrap Your Military Will? 

You already know there are no absolutes in life.  And as we have discussed in this article, this sentiment is true in death too!

Should you scrap your military Will wholesale?  Maybe not.

At the very least, it is a fantastic jumping off point to discuss what else you should be considering or should have already considered.

The good news is that while you are still alive, it is not too late!

We Help Military Families Get Their Estate Plans In Order

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Estate Planning: A Key Baby Boomer Family Value!

Estate Planning: A Key Baby Boomer Family Value!

If you were born between 1946 and 1955, you are considered to be a “Baby Boomer.”

If you are a Baby Boomer do not already have an estate plan established, you need one for your own sake and for your family’s.

So, what is an estate plan and why is it important?

In this article, we are going to discuss the basic components of a good estate plan, and why it is important for you and your family to have one.

Estate Plan Fundamentals

Estate planning is the process (and paperwork) of preparing your estate (no matter how big or small) for when you die or otherwise become incapacitated.  There are several different aspects of comprehensive estate planning and what you put in yours will be dependent on your needs, assets, and vision.

The ultimate goal of estate planning is to keep courts out of your assets and personal planning and to ensure that your family knows your wishes in any eventuality. If you do not set up an estate plan, it is very likely that a court will be the one who chooses how your assets are divided and who will take care of your health and financial decisions should you become incapacitated.

Let’s look at each part of a comprehensive estate plan more closely.

Last Will & Testament

A will is a legal document that says how your property will be distributed at the time of your death.  It is revocable and can be amended at any point while you are still alive.  If you have minor children, you will name their guardian in your will.  Here is more information on the components of a last will and testament

Trust

A trust is used for both while you are alive (if you become incapacitated) and/or after death.  The effect of a trust is keeping a court out of intervening to manage or distribute your estate.  There are also significant tax planning purposes for establishing a trust for your assets.  If you become incapacitated, whomever you name in your living trust will become your trustee and manage your estate.  The only parts of your estate covered in your living trust are the ones you put into the living trust. To learn more about a trust, you can see our article “6 Reasons to Establish a Trust as Part of Your Estate”.

Health Care Directives

Health care directives will typically include a health care declaration (living will) and a power of attorney for health care (POA).  These documents allow you to choose someone to make your health care decisions for you if you are unable to.  You can state when you want them to start and end and the conditions that should be met before granting someone else authority to make decisions on your behalf.  

Financial Power of Attorney

A financial power of attorney is similar to the health care power of attorney.  You can choose someone to make your financial decisions, instead of or in addition to healthcare decisions, on your behalf if you are unable to.  You may also choose the same or an altogether different person than you did for your health care power of attorney to act on your behalf.   

Beneficiaries for Your Bank and Other Accounts

Naming beneficiaries for bank accounts and retirement plans ensure your account are automatically “payable on death” to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.

Plan for End of Life and End of Life Events (Funeral)

Make sure your family and loved ones know what your end of life wishes are regarding organ and body donation.  Also, make it clear whether you would like to be buried or cremated.

Instead of doing a funeral prepayment plan, consider setting up a payable on death account at your bank and deposit funds into it.  The account will pay for your funeral and any other related costs.

Why Estate Planning is Important

An estate plan is important for anyone at any stage of their life.  Estate planning will help your family members and loved ones before and after you pass.  If set up well, your estate plan will also ensure more of your wealth gets to people that you love, and less is taken away in probate, and other needlessly expensive and challenging court/tax processes.

Remember, even if you are not a Baby Boomer, it is important to think about estate planning too!

Begin Your Estate Plan Today

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What to Expect From (and How to Prepare For) an Initial Estate Planning Meeting With Your Personal Family Lawyer®

What to Expect From (and How to Prepare For) an Initial Estate Planning Meeting With Your Personal Family Lawyer®

Whether you have met with an estate planning attorney before or it is your first time, it is important to understand how working with a Personal Family Lawyer® is different than meeting with a traditional lawyer.

This article will explain what is involved with such a consultation, and it may even inspire you to meet with us to get your estate planning started or updated. If you do decide to meet with us, I will share instructions on how you can do that, plus include a free offer at the end of this article to give you extra motivation to check us out.

Meet And Greet

Given our unique approach, initial consultation with our office is quite different than an initial consultation with a typical estate planning attorney. A typical “initial consultation” would be a meet-and-greet-type of meeting in which the lawyer tells you the documents you need to put in place and quotes you a fee to provide those documents.

In such a meeting, however, it will likely be difficult for you to know exactly what you need for your unique family situation and how to make the right decision, outside of simply considering whether the cost of these documents fits within your budget or not. Unfortunately, deciding what you need based solely on the cost of documents will likely lead you to make choices that will not actually serve and protect your family and assets.

Family Wealth Planning Session™

In contrast, our initial meeting with you is a two-hour working session, called a Family Wealth Planning Session™. Prior to the Family Wealth Planning Session, we will send you a personalized package of materials that will guide you in locating and listing each of your assets.

What we consistently see is that surprisingly, many people do not have a clear awareness of what they own or where to find their assets. This is the reason there are more than $58 Billion (yes, Billion with a “B”) of lost and unclaimed assets held by state and federal agencies. Often times people become incapacitated or die, and their family simply overlooks these assets.

We know you have not devoted years of your precious time and energy to build your family wealth only for your heirs to lose track of it when something happens to you. That is one reason the Family Wealth Planning Session is so beneficial. Whether you decide to create a full plan or just redesign the one you have, at the very least your family will know what you have and how to locate it should anything happen to you.

Game Planning Contingencies

Also during your Family Wealth Planning Session, we will guide you through a complete understanding of what would happen to everyone you love and everything you own should something happen to you—whether it is under your current plan or the plan the state has for you if you do not have an estate plan yet. From there, you can decide if that plan is how you want things handled or if you would want a different outcome, in which case we can design a plan to ensure things go exactly the way you want in your absence.

Finally, if you do decide to create a plan or redesign an existing one, you can select the type of plan you want based on the different packages we have created, which allow you to literally choose your fee based on what is most important to you, what is not important to you, and with a clear understanding of the impact of your choices.

The Family Wealth Planning Session is a true educational opportunity for you to ensure you are doing the right thing by your loved ones. This investment of your time now will save your family countless hours of heartache and work down the road, while also keeping them out of conflict and out of court.

Unfortunately, death is unavoidable. But you can make it far easier on the people you love by the choices you make now. And facing the reality of this fact today allows you to make choices that will let you enjoy your life even more. Indeed, our clients report a huge level of relief after meeting with us, and they frequently say they wished they had done it sooner.

Setting Up Your Family Wealth Planning Session

We would love to meet with you for a Family Wealth Planning Session. Normally, we charge $750 for these working sessions, but if you are one of the first five families to schedule this month, you commit to doing the homework ahead of time, and you secure your Session with a credit card (which will not be charged as long as you do your part), we will waive that Planning Session fee.

Simply fill out the contact form below or give us a call to get scheduled. Or if you have a relative or friend who would benefit by getting their affairs in order, pass along this article and tell them to call us. It is our mission to keep the families in our community out of court and out of conflict, and it all starts with a Family Wealth Planning Session. Because, really, your family IS worth it.

Claim Your Free Family Wealth Planning Session!

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The Lilac City Law Difference

We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.