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Hess Law Group

Estate Planning and Probate Administration

The attorneys of the Hess Law Group (HLG) have extensive experience in all facets of estate planning and probate administration, from drafting estate plans to functioning as court appointed Guardians Ad Litem.

A common misconception about estate planning is that one only needs and estate plan, if one has an estate to plan, i.e. significant wealth. While it is certainly true if you have an “estate to plan” you need an estate plan (read more here); however, estate plans are important for just about everyone. We’ve found the most commonly overlooked demographic for preparing an estate plan, is by young couples. Young couples believe since they don’t have much wealth there is no reason to prepare a plan; however, when we discuss with the couples an estate plan is where you nominate guardians of your minor children and how you intend to care for that minor child should something happen, they start listening. There are many reasons to prepare an estate plan and educating yourself as to what is included in estate plan will help you understand your reasons to prepare an estate plan.

An estate plan is an essential set of documents and generally incorporates a will, a revocable living trust, a power of attorney and a patient advocate form (often referred to as a health care power of attorney); however, more complex estate plans may incorporate an irrevocable trust, an irrevocable life insurance trust, an intentionally defective grantor trust, a charitable remainder trust, and/or a number of other documents having the common objective of ensuring the assets an individual has worked to accumulate and maintain over his or her life are utilized or distributed in accord with his/her intentions at the lowest possible tax and administrative cost.

The Will
While a will may be enough to dispose of one’s assets at the time of death, other tools may be necessary to maximize the ultimate after tax benefits to be realized by one’s beneficiaries. A will can be thought of as a legal document which puts people on notice as to what assets an individual owns which may need to be distributed upon death; however, what most people don’t realize is that even though they have executed a will, the assets owned directly by them upon death must go through the probate process in order to be properly and legally distributed.

The Trust
Assets held in a trust upon death are not subject to probate administration and its attendant costs and delays. In addition, utilizing a trust or multiple trusts may facilitate estate tax minimization planning and may also present a means of making bequests in a confidential manner because dispositive trust provisions need not become a part of the public record. Finally, through specific instructions and trust provisions, a person may be able to continue to provide guidance and protection to his/her beneficiaries even though he/she has passed on.

The Power of Attorney
The Power of Attorney is likely the most easily understood of all the documents in a general estate plan. The Power of Attorney or ‘POA’, when properly drafted and executed, provides an individual with the authority to act on behalf of another in making non-healthcare related decisions, including writing or depositing checks, selling real or personal property or handling almost any other financial matters. The POA can be designed to give permission immediately (Durable Power of Attorney) or as more commonly drafted, the POA is prepared to only give permission at and during times of physical or mental incapacity.

The Patient Advocate (Health Care Power of Attorney)
The interest in these documents has increased dramatically with the media and political frenzy surrounding Terry Schiavo in Florida circa 2004-2005. The Patient Advocate form provides an individual an opportunity to state his or her wishes for end-of-life care and to whom he or she has entrusted to make those decisions if unable to make the decisions on his/her own. Many, if not all, hospitals require such a form for family members wishing to make end-of-life care decisions for a loved one. It is a very important document and a discussion with a qualified attorney is suggested to explain the options and proper execution.