COVID-19: A Reminder of Why Estate Planning Is Important

The coronavirus was a wake up call for so many. Thankfully, for the majority of people who contracted the virus, the symptoms were relatively mild - all things considered. However, that was certainly not true for everyone, and we all know those that were impacted by this virus.

One of the ways in which we saw the impact of the coronavirus pandemic affect our clients most, was (and still is) the anxiety and fear that they did not have their affairs in order - just in case. You are not alone if you have been putting off creating or updating an estate plan, but there really is no time like the present.

There are several key documents an estate plan should include to protect you and your family if you should suddenly become very ill or pass away:

Last Will and Testament and/or a Trust

A will enables you to specify the individuals you would like to receive your money and property. In addition, you can name a guardian(s) to care for your children or other dependents if you are unable to do so and a guardian to handle their financial needs. For many, however, a will alone is not the best solution, as it is only effective after you pass away and does not avoid probate.

In a revocable living trust, you can name yourself as a trustee and continue to exercise control over the money and property you transfer to the trust. However, it also enables you to name a co-trustee or successor trustee who can manage your money and property for your benefit and the benefit of any other beneficiaries of the trust if you become too ill to do it yourself. In addition, your trust can specify when and how the funds should be distributed to your beneficiaries when you pass away. Further, if you have transferred all of your property into the trust, it will not have to go through the probate process—which can be expensive, time consuming, and open to any member of the public.

For some, other types of trusts may be appropriate to achieve particular goals, for example, protecting assets from creditors or providing for a child with special needs.

Note: If you do not create a will or trust specifying who you would like to receive your money and property when you die, it will pass to the individuals specified in the state intestacy statute, who will receive the shares mandated by the statute. This is often not desirable, as the people and shares spelled out in the statute may be vastly different from what you would have specified in your estate plan.  Moreover, probate is very often required for the administration of your estate if you die without a trust (even if you have a will). In addition, a court will have to appoint a guardian to care for your children—and the person appointed may not be the individual you would have chosen.

Powers of Attorney

Using a power of attorney, you can name people you trust to make decisions on your behalf if you become ill and are unable to make them for yourself. Even if you are married, your spouse may not have the authority to make all of these types of decisions for you without the proper documentation.

A medical power of attorney can be used to name a trusted person as your agent to make medical decisions on your behalf if you are unconscious or otherwise unable to communicate them to your health care provider. As your agent, the person you have named is required to act in accordance with your wishes to the extent that they are known to that individual, so it is important to communicate important information regarding your preferred providers, medical conditions, treatments you do not want, religious convictions, and other pertinent information.

A durable financial power of attorney will allow the person you have named as your agent to make financial decisions and conduct business on your behalf if you cannot handle these matters for yourself. It can be as broad or as limited as you choose: For example, you could authorize a trusted individual to run your business for you, or you could simply authorize another person to write checks and pay your bills on your behalf.

Note: If you do not name trusted individuals to act for you in medical and financial powers of attorney, your family members, including your spouse under some circumstances, will have to go to court to be appointed to this role. As in the situation in which you do not have a will or trust, you no longer have any control over who is named to act on your behalf. The person appointed by the court may not be the person you would have wanted to take on these important roles.

Advance Directive/Living Will

Your advance directive, sometimes also referred to as a “living will” is a document that clearly spells out your wishes for the end of your life, for example, whether or not you want to be placed on life support if you are in a vegetative state or have a terminal condition. This important document allows your family and health care providers to understand your wishes even if you are no longer able to communicate them.

Funeral Planning

You can use a memorial and services memorandum to provide information to your family and loved ones about your wishes for your service, people who should be notified when you pass away, instructions regarding your remains, and information you would like to be included in your obituary. If you do not provide this information in advance, your grieving family will be left to guess about what you would have wanted after you pass away. This could lead to unnecessary stress and conflict at a time when they are likely to be feeling emotionally and physically overwhelmed.