The Law Office of Edward B. Batista
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A typical estate plan suitable for most families consists of:
1. A revocable trust. This instrument avoids probate for all assets transferred to the trust; it also can specify distributions to persons over a long period and/or upon certain conditions (special needs, maturity, etc.).
2. A pour-over will. This instrument is a special kind of will designed to work with a trust. If an asset, for whatever reason, was not placed in trust during your lifetime, the pour-over will make sure that the asset ultimately gets moved to the trust and goes to whom the trust specifies. A probate will usually be required, so, for that reason, it is best to make sure during your life that assets are in trust so that the pour-over will never even get used. A pour-over will is merely a backup to ensure that even if an item was mistakenly not placed in the trust, it will still be distributed per the trust terms.
3. A trust certificate. This is essentially a condensed version of the trust specifying the trustee's powers. These are used in place of the trust (for various reasons) when transacting business with an institution such as a bank.
4. Assignment of Assets. This document takes all your household items and places them in trust so that your successor trustee has authority over them for proper distribution.
5. In addition to the estate plan documents described above, clients often want/need a power of attorney for both finances and healthcare.
The Durable Power of Attorney for finances enables the person you choose as your "attorney in fact" (agent) to transact business for you if you cannot. Durable Powers of Attorney are only effective up to the moment of death; upon death, your agent no longer has any power under that instrument. Additionally, you can make your Power of Attorney effective only if and when you become incapacitated, or your Power of Attorney can give your agent authority right away.
The Advance Health Care Directive is a power of attorney for healthcare. In this document, you will give your doctor instructions for end-of-life care, and you will also name an agent to carry out those wishes. Usually, this document specifies on what terms you want medical care withdrawn and whether you want medication for pain relief, should it become necessary.
6. Lastly, if you own real estate, for each parcel, a deed will need to be drafted to transfer that real property to the trust. You are transferring the real estate from yourself as an individual to yourself as a trustee of your trust.