Estate Planning – St. Louis Elder Law Attorneys
For a will or trust, we will review your assets, discuss long term goals and offer advice on an estate plan that will allow you to meet those goals. We provide advice to fiduciaries and beneficiaries about trust administration and about their rights and obligations under a trust. We help clients plan for incapacity or disability; we can provide durable powers of attorney, health care directives, and living wills.
Estate Planning Documents
Durable Power of Attorney – A document wherein a person (principal) gives someone else the authority to act on the principal’s behalf. This grant of authority may be general; incorporating the delegation of powers set out in the state statute, or may be very specific in terms of the powers given. The authority given to the other person continues after the principal becomes incapacitated. The document must contain language indicating that it is a Durable Power of Attorney. The transfer of authority takes effect upon the signing of the document and it can be revoked in writing so long as the principal has legal capacity. The principal’s signature must be notarized. A durable power of attorney may be “springing” by transferring the authority only under certain circumstances such as when the principal becomes incapacitated. (This document terminates at the death of the principal.)
Durable Power of Attorney for Health Care – A document wherein a person (principal) gives someone else the authority to make medical decisions when the principal is no longer able to make such decisions. The principal’s incapacity must be certified by two physicians unless the document provides otherwise. If the principal wants the agent to be able to withhold or withdraw artificial nutrition and hydration, she or he must say so specifically in the document.
Living Will – A document wherein a person states his or her wishes regarding termination or withdrawal of treatment. In Missouri, these documents become effective when the principal is no longer able to express their wishes, their condition is terminal, and death is imminent. Additionally, under Missouri law, a living will cannot incorporate the wish to have food and water withdrawn. This section is called the Advance Directive.
Last Will & Testament – A document wherein a person states what is to be done with their assets after death. The document has no effect until death. Therefore, the personal representative (formerly executor) has no present authority and the named beneficiaries have no present claim to the assets. Having a will or not having a will does not determine whether the person’s assets will have to go through the probate process. The determination is made based upon how a person’s assets are titled. If a person dies without a Will, the State of Missouri determines how the assets of the individual will be distributed.
Trust – There are various types of trusts. By creating a Trust, you are creating a new entity. A Trust allows management and control of assets both before and after death. A person (grantor) transfers assets to another person or institution in trust for the grantor’s or some other beneficiary’s benefit. The trustee has management authority but no ownership rights. The management authority continues after the grantor or other beneficiary becomes incapacitated. The trust may be revocable or irrevocable and it may distribute the assets at the death of the grantor or other beneficiary.
Estate Planning Legal Terminology
Voluntary – Principal must have legal capacity at the time the document or device is created.
Involuntary – Individual no longer has legal capacity and voluntary tools not in existence or not applicable.
Representative Payee – A person is approved by the Social Security Administration to receive and manage Social Security or Supplemental Security Income benefits due a beneficiary who is no longer able to manage funds. Social Security will require some proof of the beneficiary’s incapacity and the representative payee will be required to respond to a questionnaire on an annual basis.
Methods of Transferring Assets at Death: There are four (4) ways that property is transferred at death:
- Probate: Probate administration is utilized when property is titled in the decedent’s name alone. The court supervises the collection of assets, payment of debts, and final distribution to beneficiaries and heirs. Most people do not want their family to have any dealings with the probate court due to the cost and delay of administration.
- Joint ownership: This is a method of ownership seen often between spouses. An example is the joint ownership of the family home. Other assets can also be held in joint names. Joint ownership may be an inferior planning technique, as it fails to provide for the distribution of the asset once all joint owners are deceased.
- Contract: Normally, transfers by contract occur through the use of beneficiary forms. Typical examples are life insurance policies, IRA accounts, annuities, retirement programs, and transfer on death (TOD) or paid on death (POD) types of ownership. An example of a POD asset is U.S. savings bonds where a successor beneficiary is named to take ownership at death. In most states, real estate, bank accounts, and closely held corporate stock and some other types of property can be transferred by POD. The obvious advantage of this type of ownership is that the property transfers without probate, yet the beneficiaries have no ownership rights to the property until the death of the owner. The disadvantage is that not every contingency is covered under this type of planning. A Trust can be created and can also be named as the beneficiary of the asset at the time of death, and it will offer the greatest protection against potential contingencies.
- Trusts: There are various types of trusts. By creating a Trust, you are creating a new entity. You would transfer most of your property to the Trust. Some transfers would occur as part of your estate planning. Other property would be transferred at the time of your death by the use of paid on death, transfer on death and other beneficiary forms of conveyance.
Trustee – Person or persons named in a Trust to administer the Trust and all assets titled in the name of the Trust, in accordance with the terms of the Trust. The Trustee has management authority but no ownership rights.
We encourage you to contact our St. Louis attorneys to get the advice you need. Together, we can discuss your long-term goals and advise you on planning that will allow you to reach those goals.