Noblesville Estate Planning Attorneys
Providing Peace of Mind through Proper Planning
By reading this document, you have taken the first step to accomplish the important task of planning your estate. You already know the information you need to plan your estate and we can help review that information and prepare a plan that provides peace of mind.
We know that thinking about your estate plan can be uncomfortable to think about and discuss. We strive to make this process as simple as possible.
1. Why do I need an estate plan?
An estate plan is truly a life or death matter. During your life, your estate plan can provide protection for you and your family, in the event you become incapacitated and unable to handle your own affairs. At your death, your estate plan tells your loved ones how you want your affairs handled and your assets transferred.
Be assured that we are not trying to sell you a plan you do not need or understand. Rather, our desire is to help educate you on the options available and assist you in making the right decision for your situation.
Each plan is unique. Even if you do not think you have significant assets, an estate plan is vital to protect your family and your loved ones.
2. What are the types of estate plans available?
In general terms, there are three options for managing your estate. The first is Intestate. The second is a Will-based Plan (WBP). The third is a Trust-based Plan.
2.1. Intestate
The first type of plan is basically having no plan at all. This occurs when you die without a Will. This is known as passing Intestate. If you die Intestate, state law governs (1) who oversees your affairs and (2) how your assets are to be divided. The Court, by law, determines what happens and your loved ones have little control over that process. In other words, the state had a plan—you didn’t.
2.2. Will-based Plan
The second type of plan is a Last Will and Testament. This is when you die having prepared (and properly executed) a Will. The Will appoints a Personal Representative (PR) to manage your estate at your passing by carrying out the terms of your Will.
The PR, as a fiduciary, will likely need to start a Probate matter with the Court. The Court will grant the PR Letters Testamentary, authorizing the PR to carry out the terms of the Will. The PR will also provide an accounting to the beneficiaries and the Court. Having a WBP requires Probate in most cases, though there are some exceptions.
With a Will-based plan, your beneficiaries will likely need to work through the probate process.
Many of our clients mention to us that that have heard bad stories about probate. Think about the news cycle. Do you see good news or bad? The same is true of probate matters (for the most part). Yes, there are some probate matters that became news items, but many times, probate is a simple process. It can even be helpful as part of a grieving process.
2.3. Trust-based Plan
The third type of plan is a Trust-based Plan (TBP). A Trust is an agreement between you and your Trustee(s) to hold and manage assets for the benefit of beneficiaries and provide instructions for what happens when you pass away.
In a properly funded TBP, you no longer own your assets—the trust does. As a result, you have no assets to probate through the Court when you pass.
A TBP is effectively doing the probate work during life, instead of probating a Will at death. As a result, preparing a trust is more expensive initially than a WBP, but can often be more economical overall, considering you can avoid probate.
We think of our trusts based on the concept of stewardship. We are entrusted to steward (manage) the resources we have been provided. A trust simply mirrors that responsibility and allows us to manage and transfer assets in a relatively seamless manner to our beneficiaries. It helps us not think of our assets as our own, but as resources we are managing for our loved ones. The trust we often use is a Revocable Living Trust (RLT), which we call a “Stewardship Trust.”
As mentioned above, as long as the Trust is funded properly, you can avoid the need for probate, providing privacy, peace of mind, and ease of administration for your beneficiaries.
There are also more specialized types of trusts available for specific situations, which can be discussed at your Initial Consultation (e.g., Special/Supplemental Needs Trusts, Medicaid Asset Protection Trusts, Domestic Asset Protection Trusts, and the like).
3. What other documents make up an estate plan?
3.1. Power of Attorney
What is a Power of Attorney[1] and why is it a vital part of an estate plan? Preparing a POA document allows the person designated as your POA to step into your shoes and act as you would if you are incapacitated or not available to act. The POA is a Fiduciary[2] and must act with your best interest in mind.
Typically, the POA document is called a General Durable Power of Attorney (GDPOA). We sometimes refer to them as a Financial POA, because the POA typically deals with financial transactions.
You can make a POA effective on signing or when you become incapacitated. Having a POA helps avoid the need to establish a Guardianship for someone to manage your affairs.
Your POA’s powers can be limited in scope or very broad. It is important to understand what powers you authorize your POA to have. You should have a high degree of trust in the person(s) you designate as a POA. For example, you can authorize a POA to have a gifting power. As an extreme example, if your POA wanted to, the POA could give away all your assets. In another case, having the gifting power could help you become Medicaid eligible and not having that power could be problematic.
A college age child may benefit from designating their parents as POA for them. This can be helpful in authorizing the parents to communicate with schools, banks, and the like.
3.2. Healthcare Power of Attorney/Healthcare Representative
Indiana law allows you to appoint a “Representative” for health care purposes.[3] Typically, that is an individual who is at least 18 years old. You appoint someone through a written document called a Healthcare Power of Attorney or Healthcare Representative.[4]
Importantly, no one can act on your behalf for healthcare purposes unless you are incapable of consenting. As soon as you become capable again, you can make your own healthcare decisions.[5] Your representative must act in your best interest and in keeping with the terms of your document and in good faith.[6]
You might also create a Living Will (sometimes called an Advance Directive). This document typically states that in the event you are unlikely to live, you want to be kept comfortable, but take no extraordinary measures to sustain life.
4. Roles
4.1. Will-based Plan
There are various roles and responsibilities in your estate plan. For a WBP, you will designate a PR as a fiduciary. The PR is responsible for the completing the probate process and carrying out the terms of your Will. This may be the oldest child or trusted friend.
If you have minor children, you will also designate a Guardian and Trustee for the children.
4.2. Trust-based Plan
For a TBP, you will have the same roles as a WPB and will designate a Trustee for your Trust. With a TBP, you will still have a Last Will and Testament. That document is known as a Pour-Over Will.
If you have minor children, you will also designate a Guardian and Trustee for the children.
4.3. Who do I name?
If you are married, you and your spouse will typically serve as each other’s Personal Representatives (PR)/Trustees, Powers of Attorney (POA), and Healthcare Representatives. You should also designate one or more “backups” to serve in these roles, in the event something happens to both of you at the same time.
If you are not married, you will designate one or more individuals to serve in these roles.
In some cases, it might make sense to designate a professional/corporate fiduciary (e.g., PR or Trustee), to carry out your estate plan. We can discuss that option as part of the planning process. For more information, visit https://www.arrowfiduciaryservices.com to see what services a professional/corporate fiduciary can offer.
5. The Estate Planning Process
We break our estate planning process into three meetings. The first is called the Initial Consult. At this meeting, you will meet with one of our attorneys to discuss your situation, your goals, and answer any questions you might have. We want to ensure that you feel comfortable working with one of our attorneys. If you do, we will review your Estate Plan Worksheet at that time or send it home with you to be completed. Yes, you get homework.
After you provide a completed Estate Plan Worksheet to us, we will prepare and send you a Confirmation of Names and Fiduciaries. This document ensures we have all the right people in the right places in your plan (and that their names are spelled correctly). You will approve (or note any changes) and then we will draft your plan documents. Once the drafts are completed, we will set the second meeting: the Design Meeting.
At the Design Meeting, we will review the key terms of your plan documents with you. Obviously, we cannot provide you a law school education. However, we want to cover the key provisions of your plan, answer any remaining questions you may have, all with the goal of providing peace of mind through proper planning. After the Design Meeting, any necessary changes will be made and you will be ready to set the third and final meeting: the Signing Meeting.
The final meeting is the Signing Meeting. The process is like a closing on a house. You will bring your state identification (e.g., driver’s license). We will have pens, witnesses, a notary, and your estate plan documents for you to sign. Also, this is a good time to bring your checkbook or credit card to pay your invoice. Typically, the signing takes about 20 minutes to complete.
After the signing, the documents will be scanned into our electronic system and copies prepared, based on your selections in the estate plan worksheet. Once that is complete, we will contact you to come pick up copies.
Finally, because you are now part of our Lifetime Legacy Lawyers family, we will regularly follow up with you to see if any changes to your plan are needed or to notify you if there is a change in the law that might affect your plan. A good time to schedule a meeting is if you experience any significant life changes (buying a home or other larger asset, a new child, the passing of a loved one, etc.), or if you just have a question.
6. Original Documents and Copies
After your Estate Plan is signed, your original Last Will and Testament gets placed in a sealed envelope and the other original documents are provided to you, after we make an electronic (scanned) copy.
Thank you for thinking of us. We look forward to being your Lifetime Legacy Lawyers. For more resources, feel free to visit our podcast or website. To download this material as a .pdf file, click here.
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[1] Indiana defines POA as follows:
“Power of attorney” means a writing or other record that grants authority to an attorney in fact or agent to act in place of a principal.
IC § 30-5-2-7.
An
“Attorney in fact” means the person designated to act for the principal under a power of attorney. The term includes any of the following:
(1) The original attorney in fact.
(2) A co-attorney in fact.
(3) A successor attorney in fact.
(4) A person to whom an attorney in fact has delegated authority.
IC § 30-5-2-2.
[2] IC § 30-5-6-3.
[3] IC § 16-36-1-2.
[4] IC § 16-36-1-7.
[5] IC § 16-36-1-7(e).
[6] IC § 16-36-1-7(g).
Estate and Trust Administration
Once a person dies, the person’s debts need to be paid and the estate needs to be distributed. Court-oversight of the administration of the estate may be necessary. This process can be overwhelming for someone after a loved one dies. Summary procedures, or simplified and less formal procedures, may be available for the administration of smaller estates.
Working With an Attorney at Adler Attorneys
If you are interested in creating a will, trust, power of attorney, healthcare power of attorney, or funeral directive, or need assistance with estate administration, including will contests, please call (317) 773-1974 or email [email protected] to schedule a free initial consultation.
