Initial Client Consultation
Last Will and Testament Preparation
Durable Power of Attorney
IAdvance Health Care Directive
Probate, Wills, Trusts, Powers of Attorney, Health Care Directives
Attorney Larry J. Mayer provides estate planning to clients in Winchester City, Frederick, Shenandoah, Warren, and Clarke Counties.
To best care for the needs of your family and others, there are many factors that need to be carefully considered when planning your estate. One of the skills developed by an experienced estate planning attorney is the ability to pose "what if" questions to clients. Too often, clients approach an attorney in order to prepare a will or other document without having first fully thought out their own plan and circumstances. Not surprisingly, many clients might not know what specific questions need to be considered before their initial attorney meeting.
Rather than paying the added cost for a lengthy discussion during an initial visit with us, it would be more effective and cost-saving for the client to arrive with those critical questions having already been addressed and noted in writing. The client can then come prepared with many of those critical questions having already been carefully considered, with family support, at home, and without pressure or time contraints.
Consequently, upon any client requesting estate planning services, Mr. Mayer sends an advance list of questions to the prospective client. The result is that the initial meeting will not be as lengthy, and will likely be far less costly for the client. So too, in order to keep costs to a minimum, no additional charge is added for preparation of standard Durable Powers of Attorney and Advance Health Care Directives, when done in conjunction with the preparation of a Last Will and Testament or Trust.
Probate is the legal process that 1) gives effect to a person's last will and testament, 2) appoints an executor or personal representative, and 3) provides for oversight of the handling of asset distribution and other estate matters. Depending upon the circumstances of each particular case, formal probate is not necessarily required for every Will. If the estate holds significant assets, probate can complicated, time-consuming, and quite costly.
Fortunately, if planned out carefully in advance, probate can, in many cases, be avoided. Tax laws and other legal instruments can provide avenues through which assets can pass to the intended beneficiaries without the need for probate. Not every method is applicable nor recommended for every situation. However, in every case of estate planning, some careful consideration should first be given to those available methods, so as to make the settlement of an estate as least costly and complicated as possible.
When a person signs a Last Will and Testament, he is effectively giving direction to the Court to appoint that person's chosen individuals to carry out a pre-arranged plan. That plan should provide for two important issues: 1) how and to whom an individual's assets will be transferred on death, and 2) who will be appointed to assume the rearing of young children. If a person dies without a will (i.e. "intestate"), then state laws will, provide the plan for distributing property, and the courts will decide, from among certain interested persons, who should rear the children. Regardless of the assets owned, whenever children are involved, the preparation of a Last Will and Testament is highly recommended to ensure their future welfare.
Additionally, transfers of property to heirs can often involve significant tax consequences. Taxes, therefore, are always a consideration in every estate planning situation. A carefully drafted will can frequently minimize or eliminate the tax consequences of that transfer.
Created within the Last Will and Testament
In many cases, particularly when young children are involved, distributing assets can be difficult. Although the intention may be to distribute assets for their benefit, children are generally unable to manage the property themselves. Instead, a Trust may be established, appointing a chosen representative, i.e. the Trustee, to manage the property on behalf of young or incapacitated beneficiaries. Typically, a Trustee and alternative Trustees are identified to manage the assets in accordance with the pre-arranged terms and conditions spelled out in the Trust.
When preparing a Last Will and Testament, if minor children or other incapacitated persons are involved, a Testamentary Trust is often established within the language of the Will itself. That Trust t only becomes effective if, for example, the beneficiaries are still minor children at the time the maker of the Will passes. If, however, the beneficiaries are mature and capable adults, then the Testamentary Trust will have no effect. Instead, the assets will pass directly to those beneficiaries.
In short, a Testamentary Trust, is usually established to prepare for situations that might or might not exist at the time of the death the maker of the Will.
Depending upon the circumstances, a Living Trust, (a Trust document prepared during a person's lifetime) can provide for direction on how certain assets will be handled after a person's death. For example, a Living Trust may be established to allow the owner's assets, when he dies, to be used for the life-time care of another person, but which assets will then pass to other beneficiaries when that person also dies.
So too, a Living Trust can provide for a means by which assets, real estate for example, can pass to another person, while the owner is still living. The effect of this is that the property does not, therefore, pass through the probate process upon death.
The terms of a Living Trust can vary greatly to meet the needs of the situation. Often, the maker of the Trust serves as the initial Trustee, so as to direct all of the assets until his death. Additionally, a Living Trust can be made permanent, i.e. "irrevocable," or they can be "revocable," thereby allowing for changes or cancellation of the Trust entirely.
Thorough Estate Planning involves not only preparation for situations involving death and the distribution of assets, it also involves protecting those assets during an individual's lifetime. The potential gray area existing between life and death is one that needs to also be addressed. While a person is alive and capable, he has the privilege of managing his assets and affairs as he wishes. After death, his Last Will, or intestate administration, controls. However, if a person is alive but functionally incapacitated, then some provision must be made to direct the affairs and assets of that person.
A Durable Power of Attorney serves that purpose. This document is prepared in advance of an incapacitation, which will allow for a chosen and trusted person to act for the individual during the time wehn the person is unable to act for himself. Often, this document includes broad power to handle any business affairs that might arise.
Attorney Mayer believes that a Durable Power of Attorney should be considered in all client estate planning. Consequently, he offers a standard Durable Power of Attorney for the client, without charge, when drafted in conjunction with a Last Will and Testament or Trust.
Proper Estate Planning wouldn't be complete without considering the need for an Advance Health Care Directive. Previously referred to as a "living will," this document has evolved to include a number of critical matters affecting the decision making of a person who, because of incapacitation, is unable to make decisions himself. Unlike the Durable Power of Attorney, which deals with business matters, the Advance Health Care Directive deals only with personal medical issues.
Advance Health Care Directives have a number of components. The person making the document has the power to: 1) determine the whether or not artificial life-support should be maintained under certain terminally ill situations; 2) grant full decision-making authority for all other medical, visitation, and related decisions to another trusted person; 3) ensure that the document is not erroneously changed by the maker himself, due to dimentia or a similar condition; and 4) provide direction for organ donation, if desired.
Attorney Mayer believes that an Advance Health Care Directive should be considered in all client estate planning. Consequently, he offers a standard Advance Health Care Directive for the client, without charge, when drafted in conjunction with a Last Will and Testament or Trust.
Last Will and Testament Preparation
Testamentary Trust Preparation
Living Trust Preparation
Durable Power of Attorney
Advance Health Care Directive
Initial Client Consultation
Disclaimer: The information you may obtain at this site is not, nor is it intended to be, legal advice. Furthermore, viewing this site does not create an attorney-client relationship. You should consult with an attorney of your choice for individual advice regarding your own particular legal situation.
© 2014 by L. J. Mayer, PLC