What does it mean to “have your affairs in order”? To most Americans, that means having a will or trust that directs how their possessions will be distributed upon their death, end-of-life care, and money set aside for funeral expenses. No one really likes to talk about their mortality or if they are unable to make their own decisions due to a disability, which is why only 55% of adults over 55 have a will, and only 18% have a will, healthcare directive, and durable power of attorney.* It is never too soon to start planning your estate, so here are your top questions answered for wills, trusts, and estate planning—and where to start.
Everyone has an estate. Your estate is everything that you own—no matter how small. Generally speaking, your financial accounts, investments, life insurance, car, home and other real estate, and personal possessions make up your estate. When you die, you can’t take any of these possessions with you, so having an estate plan and directive for who (people or organizations) gets what and when they are to receive it. There are three essential pieces to estate planning: will & trust, healthcare directive, and durable power of attorney.
There are DIY options out there, but many people use an attorney recommended to them from a financial planner or close family member. If you go the DIY route, you need to have your documents notarized by a notary public (an official you pay who can verify your identity, witnesses your signature, and seals your document with a stamp). If you go the professional services route, your attorney and financial planner will work together to implement your estate plan. You will gather pertinent information on your assets (e.g. insurance policies, real estate deeds, stocks/bonds, retirement plans, safe deposit boxes, debts, and funeral prepayment plans). The attorney then puts together all of the necessary documents and assets into a will, living trust, healthcare directive, and durable power of attorney. They may give you additional estate planning homework assignments (e.g. update beneficiaries).
Attorneys will either charge a flat fee, hourly, or à la carte for estate plans. Flat fees for a standard estate plan range from $1000 to $3000. The lower end would be appropriate for individuals and expect to pay at the higher end if you are married with minor children. If you want healthcare directives and powers of attorney (go for it—you’ve come this far), expect to pay $3000 to $5000 for your estate plan. In the Seattle area, attorney fees range from $150 to $300/hour.
A will is a document used to name a guardian for your minor kids, names who receives your possessions, and funeral arrangements after you die. A trust can be used to distribute your possessions before and after you die and can be used if you become disabled. A will includes property that is in your name (e.g. real estate, financial accounts, vehicles), but it will not include anything that you share ownership. A will goes through probate court, which oversees that your wishes are followed and becomes part of the public record. A trust on the other hand does not go through probate court and remains private between the grantor (person who created it), trustee (person who manages it), and beneficiaries (people who receive anything inside of it).
A healthcare directive is also known as a living will and it allows you to clearly communicate your end-of-life wishes to your loved ones if you are unable to make decisions on your own. If you have a healthcare directive, your family members won’t be burdened with having to make tough decisions for you. Depending on your age, your healthcare directive decisions might be different when you are 35 than when you are 80—you can make changes to this document as you get older or if you change your wishes. If you do not have a healthcare directive and you are unable to make decisions on your own, the state where you live assigns someone to make decisions for you. This is usually a spouse, parents, or adult children. If you have no family members, the state will assign a representative for you.
A durable power of attorney is someone who can make decisions for you if you become incapacitated. You can have both a durable power of attorney and a durable power of attorney for healthcare—they don’t have to be the same person. A durable power of attorney can act on your behalf on business, financial, and tax matters, where a durable power of attorney for healthcare acts on your behalf for medical decisions.
A trustee is the person who controls the assets inside of your trust. They are responsible for distributing assets to beneficiaries according to your instructions. An executor is the person named in your will who is given control of your assets when you die until they are distributed to your beneficiaries. They are responsible for collecting all of your assets, paying final debts, filing estate taxes, and expenses related to your estate.
*Merrill a Bank of America Company (2019). Life Stage Series: End of Life/Legacy. Bank of America. Retrieved from: https://images.em.bankofamerica.com/HOST-01-19-2701/ML_Legacy_Study.pdf