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Estate Planning - More Than Just A Legal Will

Aug 17, 2007
When people think of Estate Planning, they generally think of legal wills. Estate planning is not just a will, although it does involve writing one. Rather, it's a series of legal steps that involves allowing your beneficiaries to avoid probate and minimize the taxes incurred, and for you to write a living will in which you nominate trusted associates who would assume power of attorney and executor status should you be incapacitated or die. Estate planning also allows you more direct control over how your assets will be treated when you're gone.

One of the most important parts of any estate plan are measures to avoid too much of the estate's worth being lost to taxes. In the United State and abroad, dying can attract a number of specific taxes from both State and Federal governments, like death tax and estate tax. The simplest way to minimize estate tax is to name recipients of funds or assets from your estate in your legal will, specifying that a certain amount should be given as a gift. Provided your lifetime tax-free gift threshold of $1 million is not exceeded, these portions cannot attract any taxation.

An important part of any estate plan is the inclusion of a living will. A living will is not usually considered a legally binding document, however, it is given consideration if you are ever incapacitated and left unable to carry out your legal rights, or make decisions. While the living will itself may not carry much weight, you can nominate someone to assume your enduring power of attorney (EPA). If you are unable to exercise the living will as a legally binding decision, your enduring power of attorney can only be challenged by a court.

The will itself is the most important part of any estate plan. If you should die without writing a will, the specific laws of your state will determine how your assets will be divided following probate. Additionally, with no prior planning of where the assets should go on the event of your death, your estate is likely to be taxed the maximum possible amount. Where no will is present, the spouse is likely to keep one third of the value of the estate with the remainder to be distributed evenly among children.

An estate plan enables you to stipulate, for instance, that if your children receive an inheritance, the property is given to them personally and not, for example, to the child's spouse. Should your child ever divorce, then the value of any inheritance received would not have to be shared in any divorce settlement, as it would not be a shared asset of that marriage.

One of the more important aspects of estate planning is the protection it can provide your assets. Typically, after a person passes away their family sells the assets that were left to them and divides the proceeds among themselves. If, however, you have a company or significant property holdings, you may wish to prevent the breakup of any of these assets, judging them to have more value whole compared with their value after being broken up.

Estate planning allows very specific instructions for how such assets should be treated if you wish to prevent this asset division from happening. For example, you can specify in your will that you require that your business be run by a family trust whose members and membership requirements you specify. It is not uncommon for people to wish to leave behind some legacy when they've gone, and the establishment of a family trust to ensure your assets are managed properly by a family member is a good way of ensuring it.

Another common request made is for a trust fund to be established as a scholarship fund or similar. Again, with a proper estate plan, it is possible for a benefactor to specify who a scholarship fund is for, and who is allowed to sit on any board or committee it relies on to pick a recipient.

Estate planning is the method by which specific instructions may be given in advance on how to manage your affairs should you become incapacitated or die. Estate planning represents the best way of protecting your assets from the whims of financially irresponsible relatives, excessive government taxation, and dissolution of your assets by the normal laws of succession in the state or country concerned.
About the Author
To avoid the costly probate process, have your questions and concerns addressed. Melcher's Law Firm has over 30 years experience in wills, trusts, estate planning, and probate administration. http://melcherslawfirm.com
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