Estate planning, trusts, wills and living wills are confusing and convoluted. Estate plans cover several of these items, but trusts can be a different matter. With state and federal laws regarding inheritance and property changing every year and contributing to the confusion, an individual or family should not rely on a do-it-yourself approach. What poses a more challenging and problematic situation is if there is an individual with physical disabilities or developmental special needs. Because the laws change constantly, the services of an experienced attorney need to be used.
When an individual dies without a will, also known as intestate, the assets are left for the courts to decide the best method to distribute them. The process of probate is usually never swift and even the simplest estate can often be diminished to the extent where the remaining assets are almost nonexistent. Conversely, should the entire estate be left solely to the spouse, the taxable estate of the spouse may very well increase. In the event that the spouse also passes away, the children will be left with higher taxes as well. Estate tax exemptions are available, but may not be taken advantage of without taking the proper steps.
Assigning a power of attorney is also an important component of estate planning. Not to be confused with a living will, should an individual be ill or unable to be present to make decisions about personal property and finances, a power of attorney authorizes a second party to legally make decisions in their stead. A living will does not pertain to the individual’s property, but the medical care provided.
In the event that a person becomes too ill, incapacitated or otherwise incapable of making their own decisions regarding their personal medical care, a living will prepared ahead of time will spell out the medical care desired or forbidden. An example of this would be to forbid using artificial life support when permanent brain damage has caused the brain to cease any activity.
A complete estate plan will include much of the above, but when there is a special needs or physically disabled individual, additional detailed and complex provisions need to be arranged. Without additional planning, it is almost a certainty that the disabled or special needs family member will end up in a state institution receiving only the mediocre care that lack of money can provide. Trusts are not always part of an estate plan, but are an integral part of ensuring that the special needs individual will receive the appropriate medical care after the parents have passed. Without planning for the inevitable would just be criminal for which there is no punishment.