United States: 7 Ways You Can Prepare For Your First Estate Planning Meeting

Somewhere on every grown-up person's to-do list is an entry that reads something like "tackle estate plan". You may even find it among your New Year's resolutions. The prospect of planning your estate with an attorney can be daunting, but the process itself – once you commit to doing it – can be easier than you might imagine, especially if you go into the first meeting prepared.

If you already understand what a typical estate plan looks like, you can skip to the next paragraph. Put simply, it is more than just a will. Instead, a typical estate plan contains four documents: a will, revocable trust, health care proxy and power of attorney. The health care proxy and power of attorney are designed to operate during your lifetime, while the will and revocable trust control how your property is dealt with after your death. The will tends to be a relatively simple document by which you give away your personal belongings and name the personal representatives who are to administer your estate. The trust, on the other hand, distributes the balance of your assets among the people (and charities) you care about and names the trustees who will administer the trust property according to your wishes. The trust is necessarily more complex than the will, because it is where the tax planning provisions are found.

When you meet with your attorney, he or she will guide you through the various choices you will be called upon to make, so that you end up with a set of documents that reflects your intentions. If you want to make this time with your attorney most productive, here are 7 things you can do to prepare. If you are able to put thought into any of these 7 things beforehand, you will be way ahead of the game.

1. Assemble a list of your assets and significant liabilities. This includes your house (and mortgage), bank accounts, investment accounts, business interests, personal belongings with value (e.g., artwork or jewelry), insurance policies on your life and retirement accounts. For each asset on the list, include an estimate of its value or current balance, as well as whether you own the asset in your individual name or in joint name with another person, such as your spouse. Your attorney will want to take a look at this list at the outset of the meeting, if not before, because it is a good starting point for determining which tax strategies could offer you and your family the biggest savings.

2. Consider if there are any personal belongings you want to leave to a particular person. You should think about how you would like to dispose of your things, even if you are convinced that they are not worth much money. Oftentimes, a couple will provide that all of their household furnishings, jewelry, collections, etc., will pass to the surviving spouse when the first spouse dies, and then everything will be divided equally among their children when both of them are gone. Because the sentimental attachment to certain items can be high, consider whether you should be more specific about who should receive those items. Keep in mind that the deepest rifts among adult children can begin with a tug of war over items that have value only to them. If you cannot decide at the time or want to remain flexible to change things over time, you can have a request put in your will that your spouse and/or children deal with your belongings according to any side letter you leave with your will. For this approach to work, though, you must promise yourself you will actually write that side letter.

3. Start to think about who has the skill and willingness to be the personal representative(s). The persons that you name in your will as the personal representatives will be charged with settling the estate following your death. His, her or their duties will include collecting your assets, paying debts, expenses and any taxes that may be due and then distributing the assets as directed by the rest of your estate plan. People usually name their spouse to serve as the personal representative in the first instance. If you decide to do the same, you still need to consider who should act in this capacity if and when both spouses are deceased. You can name more than one person if you like. Whoever you choose, you should also think about a successor in case the first person(s) named cannot act for any reason.

4. Get comfortable with the idea of trusts for your children and grandchildren as an alternative worth considering. You could decide to pay out all of the trust property equally among your children when you (or both you and your spouse) have died. Many individuals and couples choose another approach, however — to divide the trust property into equal shares, with one share being held in trust for each child until the child needs or wants funds. Your estate planning attorney will explain the advantages of this. For example, one compelling advantage is that property held in trust for a beneficiary tends to be insulated from the claims of that beneficiary's creditors, including a divorcing spouse. If you choose this alternative, the trusts could last throughout your children's lifetimes. Or, you could provide instead that specific portions of the trust property be distributed outright to your children at certain points in time (e.g., 1/3 at age 30, 1/3 at 35, and the balance at 40). You must also consider how you would want your property handled if one of your children predeceases you, leaving young children of his or her own.

5. Start to think about who has the skill and judgment to be the trustees. As with the appointment of personal representatives, the person or persons that you name as trustees of your revocable trusts following your death may be family members, friends and/or professionals.  If your children are relatively young and/or you decide to provide for grandchildren, the trusts could last many, many years. You may want to consider naming an institutional trustee (such as a law firm or bank) so that you will be sure there will be continuity of management. The trustee is responsible for managing the assets and making sound distribution decisions, so there will be adequate resources to meet your spouse's and/or your children's needs after you are gone.

6. Decide who should make medical decisions for you if you are incapacitated. The health care proxy, along with the power of attorney, is an important component in planning for incapacity. In the health care proxy, you name an agent to make health care decisions for you if you are unable to do so. Give some thought to the person who should have that responsibility, along with a successor to him or her.

7. Decide who should take care of your financial affairs if you cannot. The power of attorney is similar to the health care proxy, except that you are appointing a person or persons to act as your agent with regard to your financial matters during your lifetime. The power of attorney can take effect only when you are incapacitated or it can become effective immediately after you sign it (for instance, the power of attorney may be useful if your spouse is away and you need to sign on his or her behalf).

The purpose of this list is not to overwhelm you with decisions or delay you crossing this item off your to-do list. If you get stuck on any of them, know that your estate planning attorney will explain all of these things and the different options available to you when you sit down with him or her. Instead, this list is meant to get your thinking started while you have the luxury of time – in the days and weeks before the meeting – to reflect on these issues, so the ultimate result is exactly what you set out to achieve.

Originally published on January 25, 2016

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions