Reviewing Your Estate Planning During COVID-19
Over the past few weeks, our firm has received increased inquiries regarding estate planning options and considerations. While the needs of each family and individual differ, many of the questions focus on the basics: If I get sick, who will make health and financial decisions for me? Upon my death, who will handle my affairs, receive my assets, and take care of my young children (and pets)? How should I organize my important documents and where should I keep my documents?
If you are reviewing your estate planning documents, focus on the essentials. If you have not yet created estate planning documents, you may wish to use this bit of “downtime” to think about these issues. Below are some things to consider:
1) Health Care Proxy and Living Will
- A health care proxy allows you to appoint an agent to make health decisions for you if you are unable to do so. Your agent must be over the age of 18, and should be someone that understands and will abide by your wishes and instructions. You may also designate successor agents. The health care proxy should also provide a HIPAA release, so that your agent can receive your medical records and information.
- A living will allows you to state your wishes for medical treatment, so that the doctors, hospital staff, and your health care agent are guided accordingly. Review your living will to determine if your wishes are accurately stated.
2) Durable Power of Attorney
- A durable power of attorney allows you to designate an agent (or agents and/or successor agents) to act on your behalf in financial matters. These actions can include, among other things: real estate, banking, and business transactions, access to digital assets, and authority to handle personal and other tax matters. Review your power of attorney and the authority that you have provided to your agent.
- Your agent must be over the age of 18, and should be someone that you trust to make financial decisions in your best interest.
- When appropriate for tax and elder law planning, a statutory gift rider can be attached to the power of attorney to provide your agent with gifting powers and limitations.
3) Last Will and Testament – Your will is one of the central documents to provide for the distribution of your property.
- In your will, your executor (the person(s) or entity that manages your estate) will be responsible for collecting assets, paying expenses and taxes, and ultimately distributing your remaining assets as provided in your will.
• Choosing your executor is important. An individual executor must be over the age of 18, and not be a convicted felon (other legal requirements may also apply). Your Executor should have the proper balance of management ability and personal insight into your family and your wishes. Your executor will also be responsible for making various tax elections that will affect your beneficiaries.
• It is important to provide adequate discretion and powers for your executor depending on the nature of your assets. For example: If you have a business, does your will allow your executor to continue your business?
- Review your current assets and liabilities and how they are titled.
• Prepare a financial summary.
• Your will only controls assets which are held in your name alone, and without named beneficiaries; jointly held assets and assets with named beneficiaries pass outside the will.
• Review applicable current federal and state estate and income tax laws with your advisors.
- Have you addressed major life changes, such as marriages, divorces, births and deaths?
- Once you have determined who will receive your assets, it is important to decide how each beneficiary will receive his/her inheritance – outright or in a trust. There are various tax, management and asset protection reasons to create a trust. Your will can create one or more trusts that state how the assets will be invested, managed and distributed. Your selection of trustee(s) and successor trustees is important. Trustee discretion and powers are also important, and should be reviewed.
• Common types of trusts created in a Will include:
• Trusts for individuals under a certain age
• Supplemental Needs Trusts
• Credit Shelter/Renunciation/Disclaimer Trusts
• QTIP Trusts
• Generation-Skipping Trust
• Trusts for asset protection/management
• Qualified Subchapter S Trusts (consider if you own an interest in a Subchapter S corporation)
• Pet Trusts
4) You may have also created one or more lifetime trusts for estate tax planning, elder planning or other purposes. Confirm that your trusts still satisfy your goals. When reviewing the trust agreement, focus on (i) the assets titled to the trust, (ii) the appointed and successor Trustees, (iii) the current and ultimate beneficiaries of the trust, and (iv) the Trustees’ authority to manage, invest and distribute the assets.
5) Review all beneficiary designations to confirm they are consistent with your plan. Confirm that the individuals/charities you wish to benefit are properly and clearly described. It is important that certain assets, such as retirement accounts, have designated beneficiaries.
6) Clients often ask where to store their documents. Documents should be kept in a safe place that is accessible to the individuals appointed in your documents. If you have stored documents in your safe deposit box, please make sure that your agent(s) can access the box during your lifetime, and that your nominated executor can access the box after your death. If the documents cannot be accessed, additional steps will be required.
To aid your agents, executors and trustees, you may wish to create folders containing:
- Business, financial and personal statements/documents,
- A password list,
- Names and contact information of your family members and friends, medical professionals, legal and financial advisors, etc.,
- Recent business and individual income tax returns, and
- Funeral, burial, and other instructions.
If you wish to create, discuss or amend your plan, we are available to assist, and can do so online without an office visit. Most importantly, we hope that you are taking steps to stay safe, and we wish you and your family good health.
If you have any questions, please contact our estate planning and elder law attorneys:
Gregory L. Matalon, Esq., Partner, firstname.lastname@example.org
Erik M. Olson, Esq., Associate, email@example.com
Robert S. Barnett, Esq., Partner, firstname.lastname@example.org
Stuart H. Schoenfeld, Esq., Partner, email@example.com
Jordan Kanzer, Esq., Associate, firstname.lastname@example.org
Damianos Markou, Esq., Counsel, email@example.com
Monica P. Ruela, Esq., Associate, firstname.lastname@example.org
ATTORNEY ADVERTISING: This memorandum provides general information on legal issues and developments of interest to our clients and friends. It does not provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters we discuss here. Should you have any questions or wish to discuss any of the issues raised in this memorandum, please call your Capell Barnett Matalon & Schoenfeld LLP contact.