Explanation of Documents in Your Estate PlanOn the Net2020-04-25T17:00:22-07:00
The lists below describes in detail each of the documents included in our three estate plans. To view the description of the document click on the + symbol on the left of the title. Click on the – symbol to close a description.
A Healthcare Power of Attorney is a legal document in which you give someone you trust the authority to make health care decisions for you if you are unable to make them for yourself. It is also called a health care proxy, a medical power of attorney and a durable power of attorney for health care. Typically, the person is a trusted family member or friend. Spouses usually name each other as the first choice
Everybody needs this document because it names the people you authorize to make decisions about your medical care if you cannot. If you need medical treatment, but are incapacitated and cannot communicate with the doctor, who will decide on your treatment? If the doctor wants to know should he or she perform the risky surgery and one family member says yes and another says no the doctor may require the family to go to court and spend thousands of dollars and waste precious time to get a court order that says operate or do not operate.
This was a constant problem experienced by Terry Schaivo’s family. This key estate plan document can save your family from fighting over your healthcare and thousands of dollars in attorneys fees and court costs. If you have a Healthcare Power of Attorney your doctor will follow the instructions of the person you name first in the document, but if that person is not available the doctor will go to the second person you name in the Healthcare Power of Attorney.
This important document is your instructions to doctors and hospitals that if you are brain dead and in a terminal condition they are to pull the plug. Terry Schaivo’s family suffered at the end of Terry’s life because Terry’s ex-husband wanted the doctors to turn off the machines that were keeping Terry alive years after the accident that injured her brain. Terry’s parents did not want the doctors to terminate life support.
Terry Schaivo is a perfect example of why everybody needs a Healthcare Power of Attorney and a Living Will. Terry did not have either document and her family paid the price emotionally and with money that could have been better spent on something other than lawyers.
Wikipedia says “In all, the Schiavo case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; Florida legislation struck down by the Supreme Court of Florida; a subpoena by a congressional committee to qualify Schiavo for witness protection; federal legislation (the Palm Sunday Compromise); and four denials of certiorari from the Supreme Court of the United States.”
Do your family a big favor and adopt both of these important estate plan documents so nobody has to burn money going to court to get an order dealing with your medical care or authoring the doctors to pull the plug.
If you have any children under age 18 YOU MUST HAVE THIS DOCUMENT. This is the document by which you tell the Superior Court who you want to raise your minor children and manage their assets if both parents were to die. Each parent should sign this document because without instructions from the parents a court will not have any guidance on who to appoint to raise the minor children and manage their inheritance.
If you are in a coma, incapacitated or suffer mental impairment who will pay your bills and write checks on your bank account? Your Financial Power of Attorney authorizes one or more people you select to handle your financial affairs if you were to become incapacitated. If you do not have a signed Financial Power of Attorney your family will have to spend thousands of dollars to get a court order that appoints somebody as your conservator who will have the legal right and power to act on your behalf with respect to your financial affairs.
Your FPOA gives your designated agent broad powers to manage your financial affairs on your behalf if you become incapacitated or lose your mental competence. Because your designated agent will have the power to deal with your financial affairs the same as you, you should only select people who you trust completely. Typically, the agent chosen is a trusted family member or friend. Spouses usually name each other. You can have co-agents if you name two people in the same field. Your FPOA and the powers given to your agent terminate on the moment of your death. Your FPOA is very comprehensive. It will allow your agent to avoid going to court to be appointed your conservator if you were to become incapacitated.
A federal law called the Health Insurance Portability and Accountability Act of 1996 (aka HIPAA) prohibits healthcare providers from disclosing medical information about you except to authorized persons. Your healthcare agent you name in your Healthcare Power of Attorney needs to be able to get information about your medical condition from your doctors. This document authorizes your healthcare providers to give information about your health and medical condition and treatment to the people you name as your healthcare decision makers in your Healthcare Power of Attorney.
Silver Estate Plan Documents (includes all Peace of Mind Documents)
Purpose of a Will: A Will has three purposes: (i) it designates the person you desire to be the Personal Representative (aka Executor) of your probate estate after your death, (ii) it specifies who inherits your property that remains in your name after your death, and (iii) if you have minor children (under age 18 in Arizona) it designates who you want to raise and care for your minor children until they reach age 18.
When is a Probate Required: If you die and one or more of your assets remains titled in your name after your death, then somebody in your family may have to open a probate with the probate court to transfer title to the assets to your heirs. The purposes of a probate are to: (i) have the court appoint a person called the Personal Representative to collect your probate assets, (ii) pay your last expenses, and (iii) transfer assets to your heir(s). To learn more about Arizona probate read Richard Keyt’s article called “What is an Arizona Probate & When Is It Required?”
Warning: Your Will disposes property to the heir(s) named in the Will only if the property remains in your name after death. For example if you own an asset as a joint tenant with right of surivorship and you die your interest in the asset transfers automatically to the other joint owner(s) and will not go to the heir(s) you may designate in your Will to receive the asset. Likewise if you have a bank or stock account and you sign a pay on death form that designates who inherits the account on your death the account transfers automatically on your death to the person or people named in the pay on death form rather than the heir(s) you designate in your Will. These are examples of situatiions where assets do not remain in the name of the deceased after death so the Will does not apply to the assets.
This is a special deed that transfers your Arizona home to your loved ones on your death (if you are single) or on the death of the second spouse (if you are a married couple). This deed causes the title to change automatically on your death or the death of the second spouse if you are married and own your home as community property with right of survivorship without the need for an expensive and time-consuming probate. We record this deed with the county recorder of the county in which the real estate is located.
This is a document that is authorized by your Will. The Personal Property Memorandum allows you to make gifts of certain tangible personal property without modifying your Will or seeing an attorney. For example, your Will might say that if you die you give everything to your spouse or children, but you could alter that plan by completing and signing a Personal Property Memorandum that states that when you die you want your Timex watch to your sibling and your piano to go to your best friend. Gifts made in the PPM take precedence over your asset distribution plan in your Will. We give you this document in hard copy form and as an Adobe pdf file so you can revise the PPM whenever you want to change your gift plan.
Gold Estate Plan Documents (includes all Peace of Mind Documents & Silver EP Documents)
This is the foundation of your estate plan. It allows assets owned by the trust to avoid probate and contains your plan for who inherits your property and when they get it after your death. See the discussion of RLT’s that follows this list. This trust can provide life-time asset protection for your spouse and loved ones so that their inheritance cannot be touched by their creditors or by an ex-spouse if a child gets divorced or by a bankruptcy court if a surviving spouse or a child files for bankruptcy.
The heart of you estate plan is the revocable Living Trust (RLT). We believe that almost everyone with substantial assets should have an RLT. The primary reasons people create an RLT are:
a. To provide for the management of their property if they become incapacitated.
b. To avoid the delays, costs and lack of confidentiality of a probate that is necessary when assets remain titled in the name of the deceased. To learn more about Arizona probate law read the article written by Arizona probate attorneys Richard Keyt and his son Richard C. Keyt called “What is an Arizona Probate & When Is It Required?“
c. To keep their financial affairs confidential (probate court documents are open to the public).
d. To provide for the disposition of their assets after death to their family and loved ones either: (i) outright, (ii) over a period of time or (iii) for the life of one or more beneficiaries. The latter choice is best for maximum asset protection for the beneficiary.
e. To protect the inherited assets from the heir’s creditors, ex-spouses and predators. A life-time beneficiary controlled asset protection trust is the best asset protection device a parent can create for children and grandchildren or that any person can create for loved ones. For example, if the Trust is properly drafted and assets are held in Trust and not distributed unnecessarily to a beneficiary, the beneficiary’s creditors (including a bankruptcy court) and predators (ex-spouses, con-men and con-women) can never get the assets. If you have children or loved ones that you want to protect and if they may inherit a lot of money or property, asset protection may be the most important reason to create an RLT.
From time to time a third party may ask to see your trust. Because your trust contains confidential information about your family you should not give the trust to anybody unless giving it is absolutely necessary. The Certification of Trust is is a document that you give to any third party that asks for a copy of your trust. Instead of giving the bank, title insurance company, lender or other party a copy of your trust agreement give them the Certification of Trust and they will be happy.
The purpose of this very important document is to notify the trustee(s) of your trust of the nature and location of all of your valuable assets. Ask yourself this question: “If I were to die or if me and my wife were to die suddenly would my loved ones know what I own or what we own and where to find my/our assets?” If your loved ones do not know about the existence or location of your valuable assets they may never find and take possession of the unknown or lost assets.
This document assigns / transfers to your trust all of your personal property such as jewelry, art, equipment, furniture, clothing, guns and musical instruments. It does not assign personal property that has a title such as a motor vehicle or a boat.
This is an optional 12 page document that you can use to plan your funeral or memorial service and tell your family what you want to happen if you were to die. You can tell your family that you want or do not want to be cremated, that you have a burial plot, you want or do not want a memorial service or a funeral, who you want to be your pall bearers, music and/or scriptures you want in your funeral service and any thing else you want your family to know.
This document is a detailed explanation on how to transfer different types of assets to your trust. Remember: You want your trust to own your assets so the family does not have to spend time and money doing a probate. After you sign your trust your job in the next few months will be to transfer all of our assets to your trust. You don’t need a lawyer to transfer most types of assets except real estate. You should always hire a real estate lawyer in the state where the real estate is located to prepare a deed that transfer title to the land to the trust. To hire us to transfer Arizona real property to a trust complete and submit our online Special Warranty Deed Preparation Questionnaire.