Now is the time to take the legal steps necessary to ensure that your assets are protected and that your wishes met. Here are the basic documents you should consider putting in place:
A will — A will provides direction on how you want your property to be distributed after you die. When you die, if you have property in your own name, your estate will need to go through probate, which is the court-supervised process that transfers your individually-owned property to the beneficiaries named in your will. A word of caution, however: probate can be complicated and details about your estate may become public.
Revocable living trusts — A revocable trust is sometimes referred to as a “living” or “inter vivos” trust. Such a trust is created during your life rather than through your will. With a revocable trust, you can maintain complete control over the trust and may amend, revoke or terminate the trust at any time. Upon your death, the trust is usually set up for the benefit of your surviving spouse for the remainder of his/her life. At the death of your surviving spouse, the trust will often be disbursed for the benefit of your children. The disadvantage of a revocable trust is that the trust assets are countable to the donor for purposes of determining Medicaid eligibility and it does not provide protection against creditors.
Irrevocable trusts — An irrevocable trust is created during your life, but you are thereafter unable to change or amend the trust. Any property placed into the trust may only be distributed by the trustee as provided for in the trust instrument itself. For instance, you can ensure that you receive income that is earned on the trust property; however, you may not touch the principal value of the trust. The irrevocable trust where the donor retains the right to income only is a popular tool for Medicaid planning and may provide protection against creditors.
Health care proxy — The health care proxy is a simple legal document that allows you to name someone you know and trust to make health care decisions for you if, for any reason and at any time, you become unable to make or communicate those decisions yourself.
Durable power of attorney — A power of attorney is a legal instrument that is used to delegate legal authority to another individual. The person who signs (executes) a power of attorney is called the principal. The power of attorney gives legal authority to another person (called an agent or attorney-in-fact) to make property, financial and other legal decisions for the principal.
With these documents in place, you can ensure that your wishes are carried out during crucial times. A few simple steps can help turn these documents into powerful tools to meet your goals at a critical time for you and your family.
Cathleen H. Summers is a founding partner of Summers, Summers & Associates, P.C., an elder law, estate and life planning law firm located in Acton, MA. She may be reached at www.summersatlaw.com or by calling 978-263-0006. Archives of articles from previous issues can be read at www.fiftyplusadvocate.com.