By Heather Castle, CFP
Learn more about Heather at NerdWallet’s Ask an Advisor.
Creating an estate plan — a plan for what will happen to your property and assets when you die or can no longer manage your affairs — can be confusing and time-consuming. But having a few basic legal documents in place can make a big difference to your loved ones during a difficult time.
Work with a trusted attorney who understands your state’s estate laws to identify the best strategies for your circumstances. Here are five key estate-planning items to consider:
1. A living trust
Sometimes called an inter vivos trust or revocable trust, a living trust is a legal document that places your assets into a trust for your benefit during your lifetime, which means you can continue to use them as you normally would. When you die, these assets would be transferred to your appointed heirs by your representative, often called a successor trustee.
By using a living trust, you’ll save your representative and heirs time and money, because your assets avoid the legal process of distributing property when someone dies intestate, or without a will. This distribution process is called probate and can take a long time. If you die without a will, the probate court would determine who gets your assets based on your state’s laws. By avoiding probate you’ll protect your privacy, since probate is public, and speed the transfer of your assets.
2. Up-to-date beneficiary designations
One of the easiest ways to provide for those you care about is by properly designating your beneficiaries: the people, trusts or organizations you want to give your assets to upon your death. Consider and review each beneficiary designation you have made on financial assets like 401(k) plans, pension plans, individual retirement accounts and Roth IRAs, and on any insurance policies or annuities you own. One important reason to do this is accounts with properly designated beneficiaries can avoid probate and pass directly to your heirs when you die.
3. A pour-over will
A will is a legal document that states your wishes for who will inherit your property when you die. A pour-over will works alongside your living trust and has special language making the trust the beneficiary. When you use this in conjunction with your living trust, it acts as a safety net to catch and move any personal assets that weren’t placed in the trust during your lifetime. These assets would be moved to the trust after your death and distributed to the beneficiaries of the trust according to your wishes.
If you don’t use a will with pour-over language in conjunction with a living trust, any assets that you didn’t place in the trust during your life will be considered part of your estate. A regular will would go to probate to be proven in court, and then the assets would go to whomever you listed.
If you die without any will at all, your estate would go to probate and would pass to certain heirs by law, which may differ from what you would like to see happen.
4. Power of attorney
A power of attorney is written authorization for someone to act on your behalf in private, business or legal affairs. There are several different types, including:
- Heath care power of attorney is a legal document in which you name a trusted person to oversee your medical care and make health care decisions for you if you can’t.
- Durable power of attorney gives a trusted person the authority to handle financial transactions on your behalf. This is designed to allow someone else to manage all of your financial affairs for you now and in the future if you become incapacitated.
- Springing power of attorney, like a durable power of attorney, identifies a trusted person to handle your financial affairs on your behalf. However, it doesn’t give that person the current ability to make financial decisions for you. A springing power of attorney will spring into action only when there has been a triggering event like incapacitation.
Discuss with your attorney the details of each to ensure you understand and select the one that is best suited for your situation.
5. A living will
A living will, or advance directive, is a written document or statement in which you detail your wishes regarding medical treatment and life-sustaining efforts in case you become incapacitated and can no longer express informed consent. This doesn’t have to do with your assets, but it’s important to have for the sake of your loved ones. It can help them know what you want to happen during an extremely difficult time.
Review these documents regularly. You may need to update them if you’ve moved recently or plan to move — especially to a different state, because estate laws vary from state to state. You may also want to update them when you have significant life changes like marriage, divorce, remarriage, new children in the family or the death of a loved one.
Keep your estate documents in a place that is safe but where your family or representative can find them when necessary. It’s a good idea to keep a list of personal, retirement and trust accounts and the name of the financial institutions where your accounts are held, too. This account ledger will help your representative quickly and easily notify the account managers if something happens to you.
Having these basic estate planning documents in place and reviewing them regularly will help ensure that your assets will pass smoothly to your heirs and make a challenging situation significantly easier for your family and friends.