As mentioned on the Probate page, estate planning is the alternative to Probate. Estate Planning allows you to determine who you would like to be in charge of your decision making and assets before you die or become incapacitated. If you do not resolve these issues before you die or become incapacitated those decisions will be decided by the court and other people.
The most common estate planning documents consist of Wills, Trusts, Powers of Attorney, and Living Wills or Advanced Health Care Directives. Some of these documents may be better for your circumstances than others. Attorneys who practice in this area may be listed as Estate Planning attorneys, probate attorneys, or Elder Law attorneys. Iuvo Law is happy to help you in all your estate planning needs. The following is merely a brief introduction to the most typical estate planning documents:
It is best to view a Will as a directive. With a Will you are able to name the person or persons you would like to manage your assets and direct how you would like those assets distributed after you pass. A Will must still be probated, meaning your representatives must still go to court to obtain the necessary authority to manage your estate. Most estate planning attorneys will tell you that having a Will is still better than dying intestate (without a Will), as naming who you would like to manage your affairs and how they should be managed aids in avoiding potential family conflict. So although you may avoid some potential family conflict and maintain some control over your estate by creating a Will, you do not avoid the cost of court and other potential challenges of court proceedings.
It is best to look at a trust as a separate person. As explained on the Probate page, while you are alive and competent there is someone in existence (you) who has authority to make decisions for you and your assets. If you die or become incapacitated there is no longer anyone in existence with authority to make decisions for you or your assets. When you create a trust you essentially give birth to this “person” who you will then give your assets to. Under the typical scenario, you will be the trustee of the trust – the head and the hands of this “person”, but you will also have named successor trustees to administer the trust if/when you die or become incapacitated. By doing this there remains “someone” in existence with authority to make decisions for you and your assets, and you are able to avoid Probate. There are many different types of trusts, including Special Needs Trust. Trusts offer a great deal of flexibility when it comes to orchestrating your desires. To learn more, contact us today.
Special Needs Trusts
Special Needs Trusts are a subset of estate planning and should be considered when a family has special needs. Special Needs Trusts are designed to prevent disabled persons from losing their “means tested” government benefits, like Supplemental Security Income (SSI) and Medicaid. If you aren’t, and likely won’t, need these benefits, you may not need a special needs trust. However, if you are a disabled person and are unable to work, Medicaid might be the only health benefits you qualify for. If you were to receive assets or income directly from an injury settlement, a gift, or an inheritance your Medicaid and SSI benefits could cease. You need a special needs trust to protect you from losing your benefits.
There are two major types of special needs trusts – third-party trusts, and self-settled or d4A trusts. Which trust you would use typically depends on the source of funds or assets used to establish the trust. Third-party special needs trusts are established with assets of a third-party like a parent, or grandparent. Self-settled trusts are setup with the assets that a disabled person has obtained, like an injury settlement, inheritance or gift. The government allows self-settled trusts as a last chance opportunity for a person to keep their government benefits.
Powers of Attorney
Powers of Attorney are used as the alternative to Guardianship and Conservatorship. Powers of Attorney name who you would like to have make decisions for you and your assets, and how you would like those decisions to be made if/when you become incapacitated. Because you’ve given that authority to someone else while you were competent it is not necessary for your agents to go to court to be endowed with that authority as with a guardianship and/or conservatorship. Problems can arise, however, when agents have too much or too little authority. Also, the authority given to your agents’ ends when you pass, so to direct your assets thereafter you would want to draft a Will of a trust.
Living Wills or Advanced Health Care Directive
Living Wills or Advanced Health Care Directives are also referred to as “pull the plug” documents. These documents serve as instructions to your doctor and other medical personnel that direct under what circumstances, if any, you would like them to withhold medical treatment. These documents authorize your doctor to act under your stated directive without having to obtain authority from a court or your family. You draft these documents in advance of such a debilitating accident, so that your loved ones will not have to make those decisions for you in the midst of what would certainly be a difficult and emotional time. Furthermore, your preferences for the withdrawal or maintenance of life saving medical treatment may not be the same as your loved ones. These are decisions best decided by you before the need arises.
Establish a Plan Before You Need One!
Whether setting up a trust for a disabled person or for yourself or your family, the most crucial part is setting up the trust before you need it or before you lose the opportunity. If a Medicaid or SSI recipient receives a well-intended gift or inheritance outside of a trust those assets may have to be spent on medical bills instead of on the quality of life you were hoping to provide.
Iuvo Law is ready and happy to assist you in your estate planning and special need trust needs. We have helped people in Salt Lake, Davis, Weber, and Summit counties; and worked with individuals from Ogden, Roy, Farmington, Layton, Centerville, Bountiful, North Salt Lake, Woods Cross, Clinton, Salt Lake City, Holladay, West Jordan, Taylorsville, and Park City.