John W. Longnaker III Attorney
*Certified Elder Law Attorney by the National Elder Law Foundation

FAQ

FAQ -estate planning

Estate Planning (for Elder Law FAQ, see farther below)

Q5: I am a joint owner on all of my mother’s joint accounts. She wants to leave one of the accounts to my sister. Should she sign a will in which she leaves the account to my sister? 

A: While your mother should have a will that designates her dispositive wishes upon her death, if all of her accounts are jointly held with you, the assets will pass to you irrespective of what her will indicates. Even if your estate plan is simply to name beneficiaries in your assets, you need a plan designed, with the help of an attorney.

 Q6: Are there any downsides to having a revocable living trust?

A: One of the most significant downsides to a revocable living trust is the follow-through effort required to transfer title of assets to a trust. It can be rather time consuming. You’re basically doing now, what your executor would have done after your death if you died without a trust.

 Q7: Do I need a trust for my estate plan?

A: What drives the need for a trust is the level of control you want to maintain over your assets. A trust provides flexibility with the control that a standard will might not. A trust is a legal arrangement in which one person’s property on money is entrusted to a third party (or yourself) to handle that property or funds on behalf of a named beneficiary. Besides avoided probate’s cost & time, a trust is used to control the assets after death for your beneficiary, in the case of a beneficiary who is disabled, a minor, on Medicaid or SSI, a spendthrift, has creditors issues, etc.

 Q8: Do I need a lawyer for a last will and testament or can I do it myself with an online form?

A: Well, the short answer is “no” you don’t have to have an attorney but you should hire one. The advice of counsel can be invaluable depending on the circumstances of your life and complexities of your estate. Whether you draft a will yourself or hire an attorney, be sure to keep your will current and make sure your executor knows where the most current version is stored. 

 Q9: How do I choose an executor?

A: The executor is the person with the legal responsibility to ensure that your wishes for your estate are carried out, that assets transfer properly and that any bills, debts, and taxes get paid. Look for someone who is trustworthy and competent and has the right temperament to carry through your wishes. It may or may not be your oldest or the geographically closest child.

 Q10. When should I review estate plan and advance directives documents?

A. While there is no specific rule as to when to review these documents, you and your estate planning attorney should review them periodically to make sure the documents are still accomplishing the goals and desires you set out when they were created,  I would suggest you review estate plans annually or any time you experience a life changing event, such as the 5 D’s: someone’s dementia, disability, death, divorce, debt crisis. 

 Q11: What is the difference between a will and a trust; and a Durable General Power of Attorney and a Living Will?

A: It is necessary to prove (“probate”) a will once a person has died. Probate entails providing notice to those who would inherit assets, paying bills and expenses, selling assets and dividing and distributing them to your beneficiaries. It must be proven that the will was signed in accordance with state law. Once the will is approved and all necessary steps are taken, including marshaling the assets, paying bills, the executor may distribute the estate assets based on the bequests in the will. The will states who will serve as your executor.

A trust is an agreement wherein an individual—the Grantor and trustee (the creator of the trust and/or another person)—is entrusted with holding the assets of an individual. The trust indicates to whom assets are to be distributed (unless held in further trust) upon the death of the grantor. It is not necessary to prove a trust in the probate court. There are several other advantages to a trust in the case of a beneficiary who is disabled, a minor, on Medicaid or SSI, a spendthrift, or has creditors issues, etc. 

A Durable General Power of Attorney is very helpful to have before one becomes too ill to sign one due to memory or cognitive problems make it impossible.  The document allows you to pick the agent(s) you want to do decision-making, finances, paying bills, etc., and make healthcare decisions. In Indiana, incorporating the statutory powers by reference is a preferred way of structuring your power of attorney document for thoroughness and flexibility.  Having A power of attorney before you are incompetent allows you to choose, and not go through the much greater cost (up to 100 times), time, and hassle of a guardianship where the judge picks the person and takes away most or all of your rights to make decisions and act.  If you have a power of attorney, you should never need a guardian.   A living will is a rather narrow healthcare advanced directive, which is a medical declaration you sign that if the doctor determines that you are terminally ill, then only comfort care and pain medicine will be given, no life support will be given to keep you alive. Instructions to your healthcare power of attorney or representative, and if you are nearly the end of life, a POST form, will usually be needed and more comprehensive than just having a living will.