July 2020 - There is No Better Time than Now
For the past few months, headline news has been focused around the stock market volatility and the COVID-19 crisis. Every person has been reacting differently to all this news and upheaval in our daily lives, but the American spirit of coming together and helping one another, will reap rewards for generations to come. The ability to help others and demonstrate core values of kindness, love and compassion sets us apart.
As we hope to get back to some form of normalcy in our lives soon, you should be considering a number of items as it pertains to your overall financial plan, none so more important today, than your estate planning.
Many clients may not feel they need an estate plan, either because they don’t have enough money or their estate will pass outside probate. However, estate planning is much more complex. There are many elements that go into an estate plan that every client should think about, but here are some common questions that we often hear…
- What happens to my assets when I pass away?
- Who will take care of my children?
- Whom would I like to be the executor of my estate?
- Do I have a special needs child or spouse who requires additional care?
- Whom do I want to include as beneficiaries?
- Does my 18-year old need a will?
- Who makes health decisions for me if I am unable to?
These are all great questions and can feel overwhelming to navigate. Here are some of the most important documents you should focus on to help you have greater peace of mind when it comes to answering these questions.
A Will is a document that a person prepares which sets out how his or her assets to pass when he or she dies. This document is prepared to establish rules to govern the transfer of those assets when the person dies. You are not giving up control of these assets when you execute the Will; rather, the Will takes effect when the person dies. The Will states how certain assets are passed and who the beneficiaries are – whether the beneficiaries are individuals, family members, distant relatives, or possibly a charity.
A Will only governs disposition of assets that a person owns in his or her individual name. Additionally, the document does not govern disposition of assets that are governed by a beneficiary designation or other designation by contract. These beneficiary designations take precedence over the Will. Likewise, if you have a bank account and you have what's called a “payable-on-death” or a “transfer-on-death” designation that you set up with the bank, these are both types of beneficiary designations, and that designation will trump whatever you say in your Will.
Typical assets that pass by beneficiary designation are life insurance, annuities, pension plans, 401ks and IRAs. Another asset that may need a designated successor custodian is a 529 account that was established for a child. In this instance, it’s important to make certain that contributions and distributions can continue without unnecessary delay. Usually, the 529s are controlled by the donor, the parent or the grandparent who set up the account; and should something happen to him or her , you would want to be sure that a successor custodian is named so that distributions can still be made on a timely basis and the child’s education is not interrupted .
If you don't have a Will, then whatever assets you own when you die will pass under a set of laws (known as “intestacy” laws) that are set out in the state in which you live, and those laws can differ from state to state. Not every state provides for the same set of rules governing who the beneficiaries are that will inherit your assets.
The Executor or Personal Representative is appointed by the court to act on behalf of the estate; to administer the assets, handle any claims, and distribute the assets in accordance with the Will’s terms. The executor is a fiduciary. A fiduciary is an individual who is acting on behalf of another; in this situation, the fiduciary is obligated to act in the best interest of the decedent and the estate’s beneficiaries.
As a result, you may want to consider naming someone who understands finances, understands legal aspects or accounting or some type of business sense. Another option is to choose a corporate fiduciary or trust company to act in that role. A corporate trustee does not have an emotional tie to the parties which alleviates any internal conflicts that may arise, and may be appropriate where there is family discord or friction.
Durable Power of Attorney for Finances
When, In the event something happens to you that is not death (i.e. a stroke or a heart attack), it is important to name someone who can handle your financial affairs during the period that you are unable to handle those financial matters yourself. Unless you have a Durable Power of Attorney for Finances, a court proceeding may be necessary and a guardian appointed to make certain your bills are paid, your tax return is filed, and other matters essential to ensure your continued financial well-being.
The use of a Durable Power of Attorney for Finances is probably one of the most essential documents that you can have. The nature of the document being “durable”, means that it will survive your incapacity. The person you appoint as your Durable Power of Attorney will be able to step in and make those financial decisions for you.
Advanced Health Care Directives
When it comes to end of life care, it is important that those close to you know your views regarding medical intervention and use of extraordinary measures. For example,
- Do I want to be kept alive through the use of artificial machines?
- How do I feel about feeding tubes, respirators and ventilators?
- Do I wish to be an organ donor?
A 2017 article in Health Affairs discussed that one-third of Americans are missing a health care directive in their estate planning.
A living will document is a document that states a patient's preferences for different types of treatment in different circumstances; and typically, it is addressing end-of-life type circumstance. So, if a person is in a persistent vegetative state or he or she has been given a terminal diagnosis and there is an anticipation that the individual may reach a point where he or she can't make a decision, this document will address whether or not life-sustaining treatment is desired or whether life-sustaining treatment should be withheld or withdrawn.
The healthcare proxy or durable health care power of attorney is the document where you are empowering an agent make those decisions on your behalf if you are incapable of voicing them yourself.
Artificial Life Support - Your living will or healthcare directive might state that you do not wish to be kept alive via artificial means.
Do Not Resuscitate (DNR) Order - Most individuals think that they've signed them in their advanced health care directives, not understanding that Do Not Resuscitate orders really are also medical orders. And they're entered into a patient's chart by a doctor. If the patient is in a hospital, it's a hospital DNR, and if the individual is outside of a hospital, a non-hospital DNR may be necessary for EMT type purposes. Clarity around this order is key in developing the advanced health care directives.
What does that all mean with the recent virus outbreak? Do your documents align with your wishes? Communication with your family is key, because once something happens to you, you may no longer be in a position to communicate these wishes. Then, your family is at a loss as to what to do, and you may not get the type of care that you would have hoped for.
And what should a person do with these advance directives after they've signed them?
Give copies to any primary care physician or specialist that you see. In addition, you should be giving copies of these documents to the agents that you appoint. Remember, if you're going to give someone the responsibility to potentially make an end-of-life decision, they need to know it and you, as the patient, need to understand that that person is going to be willing to carry out your wishes.
Once a college-bound student attains age 18, that student is a legal adult in most states, and you, as a parent, have no rights. One of the first things you need to do as a parent is have your child sign a Power of Attorney for Finances (POA) and an Advanced Medical Directive (Health-Care Proxy). As previously stated, those documents will give you the right to talk to the doctors, get access to financial and medical records, and should, heaven forbid, the child have an accident, enable you to make those decisions without the necessity of a court ordered guardianship.
At Bleakley Financial Group, we are here as your most trusted advisor to guide you through these challenging times, aligning your core values to your financial plan. We can refer you outside attorneys if you need help with your estate planning documents to help with your overall financial planning process.
Thank you for the trust you have placed in us and we look forward to helping you achieve your dreams and aspirations.
This information does not and is not intended to constitute tax, legal or accounting advice; instead, all information and content contained herein are for general informational purposes. Only your tax or legal professional can provide assurances that the information contained herein – and our interpretation of it is applicable or appropriate to your particular situation.