estate planning

For most people, "estate planning" consists of legal documents that are designed to solve three main problems:

1. Ensure your assets go where you want them to go when you die.
2. Legally appointing someone to make financial and medical decisions if you are no longer able to make them for yourself.
3. Avoiding the probate (court) process. 

The term "living trust" is a common name for a trust that is designed to transfer ownership of the trust creator's (or "trustor") assets upon the death of the trustor, without the need for probate. Generally, these trusts are amendable and revocable during the trustor's lifetime as long as they have the mental capacity to do so. There are many types of trusts, but this is the most common.

Probate is the process by which the court supervises the distribution of a deceased persons estate (their assets). The process can be fairly simple or highly complex, depending on the situation. It can also be quite expensive and lengthy. 

A will and trust have the same general purpose. That is, to appointment a representative to administer the distribution of property, and detail to whom assets and property are distributed. However, on it's own, a will cannot avoid probate.  Whereas, a trust is designed to avoid the probate process and offers a high degree of flexibility and customization. 

Probate can be avoided without a trust. This is accomplished by adding a "beneficiary designation" to an asset or account. This is commonly referred to as a "payable on death (POD)" or "transfer on death (TOD)". By adding beneficiary designations, legal ownership of that asset or account transfers to the beneficiary upon the death of the owner. Because the deceased owner no longer owns that asset, it is not generally required to go through probate. It should be noted, that beneficiary designations have a low degree of flexibility and customization, or may not have the ability to plan for contingencies like a deceased beneficiary.

A power of attorney designates an agent to make financial and/or medical decisions for a person during their lifetime, if they cannot make those decisions themselves. Our trust and will packages include durable financial, medical, and mental health care powers of attorney. These help avoid the need for court-ordered guardianships and conservatorships which can be expensive and time consuming.

For many reasons, a person may lack the mental or physical capacity to make financial, medical or other life decisions. If an agent (power of attorney) has not be appointment by that person prior to their incapacity, the court may need to appoint a guardian and/or conservator. A guardian would make medical and other life decisions for the incapacitated person much like a parent. A conservator would make financial decisions for the person and mange that person's assets. A conservator is often the same person as the guardian.