Integrity / Experience / Results
Through the use of Living Trusts, Wills (simple and complex), Powers of Attorney, Living Wills, Irrevocable Trusts, Family Limited Partnerships, and Charitable Gifting Strategies, Pate Law Office helps families preserve their wealth for future generations, minimize estate taxes, and avoid the expense and potential problems of probate. If you have a well-drafted estate plan in place, you'll ensure that your estate passes to whom you want, when you want, and is carried out in the manner you've chosen. You can rest assured that your family won't have to endure the public process and costly matter of probate. The government won't be able to take what you've spent a lifetime building. But you need to be aware of the many options that exist in estate planning — and you must choose your attorney wisely.
There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to Indiana's laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the State’s estate plan with your own.
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will, they are said to have died "intestate" and Indiana’s state laws will determine how and to whom the person's assets will be distributed. Some things you should know about wills:
• A will has no legal authority until after death. So, a will does not help manage a
person's affairs when they are incapacitated, whether by illness or injury.
• A will does not help an estate avoid probate. A will is the legal document submitted
to the probate court.
• A will is a good place to nominate the guardians (or back-up parents) of your minor
children if they are orphaned. All parents of minor children should document their
choice of guardians. If you leave this to chance, you could be setting up a family
battle royal, and your children could end up with the wrong guardians.
Trusts come in several types, and they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary).
Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Or they may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old. The most common types of Powers of Attorney are the General Power of Attorney, which designates who will be empowered to make decisions for you regarding business affairs, banking matters, etc., and the Health Care Power of Attorney, which designates who will be empowered to make medical treatment decisions for you if you are unable to communicate. Without this authorization, your doctor may refuse to communicate with your hand-picked decision maker.
A Living Will is a document that specifies whether to allow artificial life-prolonging procedures and treatment to you, and whether or not you would refuse artificially supplied food and water under certain circumstances. In Indiana, if you choose to have a Living Will, it is by statute, and the language must comply with the statute. Also, if you desire to have a Living Will included in your comprehensive Estate Plan, it is good to do it at the same time as the execution of your Last Will and Testament due to the requirement that each document should have to have two witnesses during execution of the document.