Justia Legal Guides: Estate Planning Legal Center

Tools like wills and trusts can help you control what happens to your property and provide security for those who matter most to you. The Estate Planning Legal Center at Justia describes some of the options that may be available.

Approximate Read Time: 5 Minutes

Death seems distant to most people in their 20s and 30s. They usually don’t think much about putting together a will or another type of estate planning instrument for their property in case they pass away. Legendary musician Jimi Hendrix was no different.

On September 18, 1970, two days before his 28th birthday, Hendrix died from an overdose of alcohol and sleeping pills. He left no will for what would happen to his property upon his death, so his estate was divided according to intestate succession rules. These distribute the assets of a deceased person according to a default statutory formula. As a result, Hendrix’s estate went entirely to his father, Al. None of his other family members inherited anything, which might not have been what Hendrix would have wanted. For example, he might have wanted to leave some of his estate to his younger brother, Leon.

A family feud erupted when Al died in 2002 and left nothing in his will to Leon except for one of Jimi’s gold records. Leon filed a type of lawsuit called a will contest, based on a theory of “undue influence.” He argued that Al’s adopted daughter, Janie, manipulated Al into revising his will to exclude Leon. Washington courts ultimately upheld the will, however, noting that Al had met alone with his estate planning attorneys many times and that Janie was not present when the will was signed or during most of the will drafting meetings.

Had Jimi Hendrix taken the time to craft a will, he could have ensured that his assets were distributed as he would have wanted. This also could have averted the ugly feuds and costly litigation in which his family became embroiled. To avoid these types of outcomes, anyone of any age should consider developing at least a simple estate plan. The Estate Planning Legal Center at Justia provides some basic guidance on tools and strategies for doing that.

Wills

To be valid, a will must meet certain formal requirements. For example, the testator (the person making the will) must have capacity to make the instrument and must sign it, and other people generally must witness their signature. The testator and the witnesses may be able to simplify the process of probating the will by making the will self-proving. This means that the witnesses will not need to testify in court that the will is valid. Justia provides a 50-state survey on requirements for wills, covering topics such as who can make a will, who must witness the will, and how the will can be made self-proving. The survey also includes useful forms and related resources for making a will in each state.

Sometimes a testator needs to change a will if a major event happens in their life, such as marriage, the birth of a child, the death of a beneficiary in their current will, or the acquisition or loss of substantial property. They can change their will by creating a “codicil” to amend it, while leaving the original instrument intact. However, an easier solution may involve making a new will so that a single document contains all of their wishes. The new will should explicitly state that it revokes any previous wills.

A standard will should not be confused with another instrument called a “living will.” This does not allocate assets to beneficiaries but instead describes certain preferences for medical treatment. For example, you can use a living will to describe when and whether resuscitation, ventilation, tube feeding, or other extreme but potentially life-extending medical procedures should be used if you cannot communicate your wishes when the time comes. A person also can create a related document called a do not resuscitate (DNR) order, which means that they do not want to receive cardiopulmonary resuscitation (CPR) when it normally would be provided. A doctor usually will need to assist with completing a DNR order.

Trusts

Many people develop an estate plan that combines a will with one or more trusts. A person who creates a trust is called a settlor. Once the settlor transfers property into a trust, a trustee manages the property and distributes it to one or more beneficiaries as provided by the trust. You can create a trust for any legal purpose, and you can put any type of property in a trust.

Trusts come in many forms, some of which are extremely specialized and complex. One key distinction to keep in mind is between living (inter vivos) trusts and testamentary trusts. A living trust is created while the settlor is still alive. Property in a living trust does not need to go through the expensive and time-consuming process of probate. Through a pour-over will, moreover, the settlor can “pour over” any property that they own at their death into a living trust that they previously formed. The pour-over will still needs to go through probate, but it probably will not contain significant assets, so it may go through the process more quickly and smoothly.

On the other hand, property in a testamentary trust must go through probate. A settlor provides for a testamentary trust in their will, and the trust is not created until the will is probated. The validity of the trust thus hinges on the validity of the will.

Like wills, trusts can be contested for reasons such as undue influence, lack of capacity, or a failure to meet the formal requirements for creating a trust. In addition, a beneficiary might hold a trustee liable for breaching their fiduciary duties while managing the trust property. For example, a trustee cannot mix their personal property with the assets in the trust.

Powers of Attorney

In addition to a will and a trust, you might consider powers of attorney. The main types of powers of attorney are financial powers of attorney and healthcare powers of attorney. In a financial power of attorney, you can name someone (known as an agent) to handle your property and funds. The agent may have general authority over all financial affairs, or their authority may be limited to certain matters. If you make the power of attorney durable, it will remain in effect if you become incapacitated.

Meanwhile, a healthcare power of attorney names someone (often known as a healthcare proxy) to handle medical matters for you if you become incapacitated. This can complement a living will in ensuring that a patient’s treatment preferences are honored, but it can also extend more broadly. A healthcare proxy might be able to choose a doctor, set up admission to a nursing home, or get confidential medical records, among other powers. You can modify a power of attorney if you want to change the scope of the agent’s authority.

Final Thoughts

Deciding how to divide your money and property upon your death is not an easy task to contemplate. However, taking the time to draft a strong, thorough estate plan can ensure that your wishes are honored and reduce the risk of conflict among your loved ones later. As you develop a strategy to achieve your goals, you may want to consult an estate planning lawyer for personalized advice. In the meantime, the Estate Planning Legal Center at Justia provides an overview of some key concepts and legal issues that may arise in this area. Like the other Justia Legal Guides, it aims to make the law transparent and accessible to all.

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