Tuesday, February 23, 2021
While most initial meetings with an estate planning attorney will result in some questions you likely have never considered, there are many ways in which you can prepare for a thoughtful and productive estate planning conference that will result in a better understanding of your goals and more efficient use of time with your attorney. The following are suggestions regarding questions to consider and information to gather in advance of your estate planning consultation.
1. Guardians and Conservators for Minor Children
If you have minor children (under 18 years old) or are considering having children, you should designate one or more guardians who can be named individually or can serve as a team. Naming a successor in the event that the first guardian is unable or unwilling to serve is a best practice. This question can be one of the most difficult for couples to answer. If you find you cannot agree, don’t allow this to keep you from visiting or revisiting your estate plan; your estate planning attorney can provide you with suggestions, and having some say in the guardian of your children is preferable to allowing a court to decide without any direction from you. For common considerations in selecting a guardian and conservator, please see our advisory on Choosing a Guardian and Conservator for Minor Children.
2. Trustees, Personal Representatives and Agents Under Durable Power of Attorney
Your assets can be managed by the Agent under your power of attorney (in the event you are incapacitated) or by the Personal Representative of your estate (after your death). In addition, the Trustee of your Living Trust is authorized to deal with all assets owned by the Trust in the event of either death or incapacity. It is very common for these three roles to be filled by the same fiduciaries.
3. Patient Advocate Designation and Living Will
A Patient Advocate is named to make medical decisions for you if you are unable to do so, including to carry out your wishes as described in your Living Will.
4. Personal Property
If there are any special items of tangible personal property (e.g. cars, clothing, jewelry, artwork, collectibles, etc.) that you would like to be given to someone other than a surviving spouse (or, in the event there is no surviving spouse, to be given to specific individuals rather than divided as equally as possible among surviving children), prepare a list of the items and who should receive them ahead of your meeting.
5. All Other Property
Are there any items of remaining property that you would like to go to someone other than a surviving spouse (or, if no surviving spouse, equally to surviving children)? Examples include business interests and real estate, among others.
6. Charitable Bequests
Are there any charitable bequests you would like to make?
7. Distributions to Beneficiaries
- When and How Should Beneficiaries Receive? In the event that property is to go to surviving children (or, other family such as grandchildren, nieces, or nephews), are you comfortable with your beneficiaries receiving their entire share upon reaching age 18, or would you like to delay distributions until later? A trust can provide for use of the assets by the beneficiaries within the discretion of a Trustee (whom you select) so that the beneficiaries have use of the assets without the unrestricted right to withdraw them. With this setup, at what ages would you like distributions to be made? Any number of ages can be designated, for example 1/3 each at ages 25, 30, and 35 with the ability to access the funds earlier for approved expenses such as tuition or health needs.
- Equalizing Portions. Additional considerations include whether you would like to equalize, as much as possible, for certain lifetime gifts made to beneficiaries or special distributions of personal or other property. For parents who intend to pay for such “big-ticket” costs as college tuition and weddings for their children, equalizations can be built into the trust so that younger children don’t get short-changed if the parents pass after having paid these costs for older children but before having paid these costs for younger children.
- Other Considerations. It is important for your estate planning attorney to know whether any of your beneficiaries have special needs, are receiving (or are likely to receive) means-tested government benefits, seem likely to divorce in the future, suffer from any addiction, are or have previously been incarcerated, or have creditor-related issues.
If you have pets, who should be named to care for them, and will you leave any funds in trust for their ongoing care? Will the trustee be the same as the caregiver, or should they be different individuals (or institutions)? If you have multiple pets, should they remain together? For more information about pet trusts, please see our pet trusts practice page.
9. “Ultimate Takers”
If none of your intended beneficiaries survive, who would receive your estate? People often consider parents, siblings, nieces and nephews, and charities.
10. Information to Gather
- Information Regarding Your Assets. It is rarely necessary to have complete statement balances for all of your assets, but knowing what types of assets you have and your total net worth is very important to properly plan your estate. Knowing your total net worth allows your estate planning attorney to assess the need for estate tax, gift tax, and generation-skipping transfer tax planning that reduce or eliminate these tax liabilities. Knowing the types of assets that you have and the proportion of certain types of assets to your total estate allows your estate planning attorney to: 1) provide direction for properly “funding” your trust; 2) assess possible income tax and capital gains tax liability; 3) assess liquidity concerns relating to bequests and tax liabilities; and, 4) plan for special types of assets such as qualified retirement plans (IRA and 401(k) plans).
- Contact Information for Beneficiaries and Fiduciaries. Gather addresses and phone numbers for children and other beneficiaries, and anyone you will name as Trustee, Personal Representative, Agent under Durable Power of Attorney, Patient Advocate, and Guardian and Conservator of minor children.
- Prior Estate Planning Documents. Gather your existing estate planning documents, if any, including Trusts, Wills, Durable Powers of Attorney, Patient Advocate Designations and Living Wills, Deeds and/or Land Contracts, and Assignments of Interest.
- Other Documentation. Other important documentation to provide to your estate planning attorney include Operating Agreements and any Buy-Sell Agreements for any businesses in which you have an interest, and any divorce papers.