Updated: Feb 14, 2021
Whether you are getting started on you estate planning or just performing your annual review, this guide will help you consider options to include in your estate planning documents.
These are what we recommend you consider for the essential estate planning documents to have in place or discuss with your attorney. To get details on where your state stands on requirements for witnesses and how to use online notarization, consult an estate planning lawyer, or contact your secretary of state's office, which is in charge of regulating notaries in most states. Another online resource for estate planning laws is Nolo, a legal software company, which provides a state-by-state guide (www.nolo.com/legal-encyclopedia/estate-planning-your-state).
1. Will or Living Trust
b. Will: This is a legal document that directs the distribution of your assets after death and can appoint guardians for minor children. If you die without a will, your state's laws decide who gets your assets and other property.
Pets cannot inherit anything because by law pets are property. A pet can be left to a person in your will, but be sure to consider the pro’s and con’s of designating someone in the will versus a pet trust (see below).
a. Living Trust- A living trust may be used rather than a will. A living trust or inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may be revocable or irrevocable in the United States. A trust is presumed to be irrevocable unless the instrument or will creating it states it is revocable, except in California, Oklahoma and Texas, in which trusts are presumed to be revocable until the instrument or will creating them states they are irrevocable.
An irrevocable trust can be "broken" (revoked) only by a judicial proceeding.
Two advantages of a living trust vs a will is that a living trust protects the estate from probate and it can take effect during the lifetime of the originator (Grantor/Settlor/Trustor). In regards to pets, a living trust can also specify how pets will be cared for and designate someone to oversee their care (trustee or enforcer). (See Pet Trust below.)
Comparison of Will vs Trust
Here is a quick comparison of what wills and living trusts can do. Read below for details about each characteristic.
2. Health care durable power of attorney: A durable power of attorney for health care, or health care proxy, is a good supplement to a living will (see below). It permits you to name someone to make health care decisions for you if you are incapacitated in some way (say, in a coma) but still alive. There is no reason you can't have both a living will and a durable power of attorney, and, in fact, you probably should have both. In some states you'll automatically get both, because the two are merged into a document called an advance directive. Typically, you would ask a friend or close relative to take on this responsibility. But be sure that you have discussed it with them and that they have agreed to do so ahead of time. Make sure people you pick as your proxies have a copy. In most states, the document must be signed, dated and notarized. Having it signed by an adult witness isn't usually required, but is recommended.
3. Living will: A living will, sometimes called an advance directive, is a sort of hybrid will that outlines the kind of medical care you want if you are terminally ill. For example, if you don't want to be kept alive on life-support systems, such as a respirator or feeding tube, you can make that known. You can include instructions for organ donation. For a living will to be valid, it typically must be witnessed by two adults, and they usually can't be members of your family or your attending physicians. Depending on your state, you'll need to sign the document in front of witnesses, a notary or both.
4. Durable power of attorney for finances: A financial power of attorney is a document that gives someone the authority to handle financial transactions on your behalf. It's designed to let someone else manage all of your financial affairs for you if you become incapacitated. In some states you simply sign the document in front of a notary; others require witnesses to sign as well.
5. HIPAA authorization: The federal Health Insurance Affordability and Accountability Act set privacy rules for patient records; a release document for records is generally executed along with estate planning documents. It allows you to name people to be treated with the same rights you have regarding disclosure of medical records. Typically, this includes your spouse, children or other close relatives, so that these family members can communicate with doctors and nurses and find out how you're doing if you're hospitalized.
6. Pet Trust: A pet trust is a legal arrangement to provide care for a pet in the event of death or disability of the owner. A pet trust can be either a stand-alone pet trust or provisions that you insert into a comprehensive living trust done as part of your estate planning. A living trust avoids delay between your death and the property being available for the pet's care.
Pet trusts stipulate that in the event of a grantor’s disability or death a trustee will hold property (cash, for example) “in trust” for the benefit of the grantor’s pets. An important difference between the pet trust and a will is that a will only goes into effect upon the event of death, however a pet trust can be in effect while you are still alive, for example upon entering a nursing care facility. There are other important differences, and they may vary by state, so be sure to discuss them with your attorney.