Your Set of Estate Planning Documents

June 18, 2025

To protect your family, you should have a set of estate planning documents that address who is in charge if you are disabled or when you die. There are some important documents that should always be in your estate plan to protect your family. However, some people still leave them out, according to Consumer Reports in “8 Essential Steps for Estate Planning.” A survey from Caring.com showed that as many as 60% of adults don’t have estate planning documents. When they asked families with young children, fewer than one in ten have even designated a guardian to take care of their children, if both parents should die. Worse yet, we have worked with numerous cases where people thought they had documents in place, but due to their own misunderstanding of the law or requirements, their plans were agonizing disappointments of what should, and could have been… What happens when there’s no planning in place? Even the simplest things become more complicated, and complicated things become financial and legal nightmares. When there’s an emergency and decisions need to be made, the entire family is subjected to more stress and costs than would otherwise be necessary. Here are the eight steps you need to take, right now, to protect your family: Get the professional help you need. The change to the tax law may or may not impact your family and your estate plan, but you won’t know until you sit down with an estate planning attorney. Trying to do this online may seem like a simpler way, but you will not have the same peace of mind as when you sit down with an experienced attorney, one who knows your state’s laws. Create a will. This is a legal document that outlines how you wish to distribute your assets upon your passing. It names an executor to carry out your instructions. If you have minor children, this is an especially important document, since it is used to name their guardian. If you have no will when you die (called dying “intestate”), then the laws of your state determine how your assets are distributed and who rears your children. Depending on where you live, your spouse might not automatically inherit everything. Discuss whether you need a Revocable Living Trust. In most states, when you pass away, your estate goes through a process called “probate.” The courts basically review your estate plan and determine whether everything looks right. The problem is that your will becomes a public document—and so does information about your assets. Some people prefer to keep their lives private by transferring assets to a revocable living trust, which distributes assets according to your instructions at your death. Titles to the assets must be changed so they are “owned” by the trust. This is known as “funding” the trust. You still retain complete control of your assets, since you are the trustee. However, if you fail to retitle assets, the estate goes through probate. You will also still need a will

What Powers are Granted in Your Power of Attorney

June 11, 2025

A power of attorney gives someone the authority to act on your behalf. However, understanding the scope and limits of that power is essential to protect your interests.

Power of Attorney Requires Trust

February 20, 2025

If you think of an immediate power of attorney, take your time and decide carefully. When you create a power of attorney, the authority granted in that document can be immediately effective or alternatively can be activated only by documented proof that you are incapable of acting. Everything in life has its advantages and disadvantages. The immediate power of attorney is excellent because it is very easy to use. It can be not so great because it is equally easy to misuse. However, that requires some very careful thought before making the decision, according to the Glen Rose Reporter in “Should you add hot powers to your power of attorney?” The “hot” powers are well-named since they give a financial power of attorney considerable power. This gives an agent a lot of leeway during one’s lifetime. It allows the agent to create, amend, revoke, or terminate a trust during the principal’s lifetime. The agent may also be given the power to make gifts to themselves or others. They can also include other special powers, such as the powers to create or change rights of survivorship, create or change a beneficiary designation, and authorize another person to exercise the authority granted under the power of attorney. These extraordinary powers can be very helpful for long-term care planning if someone is currently or will soon need nursing home care. The agent’s gifts are further limited to being consistent with the principal’s objectives if the agent knows what those objectives are. However, if the agent does not know what those objectives are, he or she must still make sure the gift is aligned with the principal’s best interest based on the value and nature of the principal’s property, foreseeable obligation, and the need for maintenance. The person holding the power of attorney needs to know their responsibilities, and if they are given “hot” powers, they need to be informed what those specific powers are. If the agent is someone other than a spouse or descendant, that agent may not make gifts to themselves. A spouse or descendant, however, could make gifts to themselves. It boils down to the degree of confidence you have in the person you are empowering in your power of attorney. The person does not need to be a financial genius. They can hire advisors. However, there is no replacement for trustworthiness. Reference: Glen Rose Reporter (Jan. 3, 2019) “Should you add hot powers to your power of attorney?” Estate Planning Attorney Can Help Avoid Family Feuds

Don’t Fall for Estate Planning Myths!

January 9, 2025

There are some common estate planning myths that you know: Your work isn’t done just because you have a will. There are many myths floating around about wills, trusts, and estate planning. Those myths can easily confuse people who haven’t taken the time to bust them before getting on to the real work … taking care of the family, according to the Cleveland Jewish News in “Estate planning myths common, but debunkable.” One common myth is that a trust is wholly creditor-protected. While some trusts achieve this goal, many don’t. It is easier to provide that to your beneficiaries than to yourself. Another myth is that once an estate plan is completed, there’s no need to revisit or make changes. We look at the planning you put in place as an ongoing rough draft. Perhaps the biggest myth around estate plans is that they are only needed by wealthy people. Everyone needs a will. A property power of attorney can save your loved ones thousands of dollars and massive aggravation. People chat with their friends and neighbors and pick up snippets of often incorrect information. As with any story, once a piece of information has moved through a few different people, it becomes confusing, even if it started accurately. The value of such “Street lawyers” is usually what you pay for it. Unless it comes from an estate planning attorney, don’t get legal advice at a neighborhood or family gathering. The results can be disastrous. If you think having a trust alone is enough to prevent your heirs from having to pay any taxes, your kids will be in for a big and expensive mistake. The court will appoint a guardian if you don’t set up guardianship for your minor children. It may be a person you would never have wanted to raise your children. If a separate financial trustee is not named, there won’t be any checks and balances on how the money left for your children is spent. If you don’t have an estate plan, especially if your family includes minor children, make an appointment to speak with an estate planning attorney who can advise you on an estate plan that fits your unique circumstances. Reference: Cleveland Jewish News (Sep. 20, 2018) “Estate planning myths common, but debunkable”

Proactive Legal Strategies for Cognitive Decline

November 13, 2024

Legal tools like power of attorney and healthcare directives are essential in forming a proactive legal strategy for cognitive decline.

College Student Power of Attorney

August 5, 2024

For some students, next semester means starting college, which may include leaving home for the first time.

Selecting Your Financial Manager Can Help Avoid Family Feuds

July 31, 2024

When someone chooses a financial manager because they don’t want to hurt feelings, the result is often disastrous. It’s important to pick the most competent and trustworthy candidate.

Is a Guardian Needed? Consider Other Options

July 17, 2024

Some of the options are less intrusive than a guardianship or a conservatorship. Sometimes, guardianships and conservatorships are necessary when some members of a family believe a loved one is becoming mentally or physically incapacitated. However, there are other options, according to On Common Ground News in the article “Alternatives to guardianship and conservatorship.” What is the difference between the two? These are legal proceedings that vary in name from State to State. In Maryland, these proceedings are guardianships and take two forms: Guardian of the person and guardian of the property. A Guardian of the person decides on living situation and most medical care: The Guardian of the property handles the property and lets the appointed person their ward’s finances and assets, buy and sell businesses, and enter into commercial transactions. Either process will involve a court proceeding, ordinarily with an attorney representing the family and a separate attorney representing the incapacitated person. Guardian of the person can sometimes be avoided by relying on the Maryland Health Care Surrogate law, which basically allows next of kin to make medical decisions for someone who does not sign a living will or health care power of attorney. This can be a good alternative to Court if the family is united in their decision-making. It doesn’t work well if they are not. Alternative options for the Guardian of the property include a Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf. A second alternative is creating and funding a revocable living trust, where you can appoint a chain of command to manage assets in the Trust. Many of our clients name a trustee child or other individual as a co-trustee to be in the wings to manage assets at disability. Options like powers of attorney and trusts have the distinct advantage of allowing the person to lose the capacity to make decisions while there is still time. Perhaps the last stage can set the stage for future family functioning or dysfunction. We recently represented a family with a child that is developmentally delayed, as has recovered a personal indury settlement for damages that are causing the delay. We were in the Howard County Circuit Court asking a Judge to consider allowing the funds to be placed into a special needs trust format so that they would not need to be spent before the State could render aid. The Judge approved that my clients were able to make plans for their child that would not involve ongoing Court intervention and allowed our request. She recognized that the family was capable, caring, and trustworthy to do so. An estate planning

Selecting an Executor (or Trustee)

May 9, 2024

Selecting an Executor (or Trustee)? If you can’t pay your bills due to injury or death, selecting an Executor (or Trustee), often proves to dictate how well the plan will work. Who do you pick as the quarterback? In a Will, Trust, or Power of Attorney, you must select a money managing chain of command. Who are you going to hand the checkbook to? Although the role has different names for different documents, the considerations are the same. They all serve as fiduciary, who you trust to stand in your shoes and act for you when you can’t. In a Power of Attorney, this fiduciary role is called an “Attorney-in-Fact”; for a Last Will and Testament, this is an executor, and for a trust, it’s the trustee. Selecting fiduciaries becomes more accessible when the role is understood. A fiduciary is someone empowered to control different assets for another person, usually the intended beneficiary of the assets. The fiduciary must put the fiduciary’s interests aside and act in the beneficiary’s best interest, even when doing so is contrary to the fiduciary’s interests. Who Can Be a Fiduciary? A fiduciary can be anyone with legal capacity, including family members. Suppose you are not comfortable with a relative controlling your assets as a fiduciary. In that case, you may prefer to have a non-family member or even a financial institution serve in that role. For example, an estate planning attorney is a fiduciary by the nature of her legal and ethical obligation to act in the best interest of her clients. Still, an attorney also may serve as a fiduciary for an estate, a person, or a trust. The fiduciary appointed to administer a trust and manage its assets is a trustee. If the trust is created under your last will and testament to administer the inheritance for your beneficiaries, then such trust is known as a “testamentary” trust. On the other hand, if the trust is created under your revocable trust established during your lifetime, then the inheritance trusts come into play upon your death. Both inheritance trusts are irrevocable; the difference is that the “testamentary” trust requires probate, and the other does not. The fiduciary nominated by you to carry out the probate and administration of your Last Will and Testament is an executor (or personal representative). The executor must first receive permission from the court to carry out the executor’s responsibilities. Their authority to act comes into effect only after the last will has been presented for probate and the court appointments that person to serve. How Do I Select the Best Candidate to Be My Fiduciary? Ordinarily, the person doesn’t need to be a financial expert: pick someone honest and reliable. They can hire experts, but there is no substitute for character. Selecting a fiduciary to take care of your financial and legal decisions at incapacity or death can be more complicated than deciding who you want to inherit your estate. If your family includes multiple marriages or has

The Twilight of Capacity for an Aging Parent?

March 28, 2024

The path from capacity to incompetence can be slow and difficult to analyze.

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Property Power of Attorney