(Living Trust Centered Estate Plan)
The purpose of this letter is to inform you as to what information is necessary to complete a comprehensive estate plan. A comprehensive estate plan includes the following documents: Pour Over Will, Durable Power of Attorney, Patient Advocate, Revocable Living Trust, Assignment of Personal and Intangible Assets, Funding and Administration Guide and Certificate of Trust. Specifically, to complete your estate plan in a timely and proper manner, I will need certain information from you.
Further, as it applies to married couples, I will assume that both the husband and wife will act as the first choice of attorney-in-fact, patient advocate, trustee and competency determinor. Therefore, the information is requested in this singular form. If you are married, answer each request for information for each spouse. If you are not married please disregard any references to “your spouse.”
1. Who will be the alternate personal representatives for your last will and testament?
This is a Pour Over Will, which is a fail-safe method of guaranteeing that, if any property is inadvertently left out of the Trust, it will “Pour Over” from probate back into the Trust. Your alternates can be a child, relative, trusted friend or advisor or, upon last resort, a commercial trust institution (a corporate trustee).
2. Who will your Patient Advocate be after your spouse?
A patient advocate addresses the “quality of life” decisions for you. If you are suffering from an incurable injury, illness or disease, persistent vegetative state or irreversible coma, and the only thing that is keeping you alive is artificial means or heroic measures, who will be the one that will carry out your wishes to refuse or withdraw treatment under those circumstances? This can be your spouse, child(ren) relative or friend. Your children can together or collectively by majority or unanimous vote.
3. With respect to the Durable Power of Attorney, you will have to choose a person to serve as your attorney-in-fact. Specifically, who will serve as your attorney-in-fact after your spouse, and the alternate attorney-in-fact?
This Power of Attorney will become useful upon your disability, to avoid the necessity of a Guardianship and to provide long-term care planning to protect and preserve your assets. Your goal to ensure the greatest quality of Long Term Nursing at the least cost to your family can be achieved. All your assets, except your tax qualified investments (401K, IRA, 403B and some annuities) will be held in Trust, under the Trustee’s authority and therefore the Power of Attorney will not apply to them.
4. With respect to the Trust, I need you to advise who will be serving as your Successor and Alternate Trustees.
If married, I assume that your spouse will serve as Trustees for you, and, if one is not able to serve for the other, for any reason, then you will have to select a Successor Trustee. I also recommend that you select an Alternate Successor Trustee. If you are not married, then logic dictates that you will need to select a Successor and Alternate Trustee.
I recommend that your Trustee be someone that you have faith and confidence in, which can be a child, grandchild, niece or nephew, other relative, trusted friend, advisor, or, in the case of last resort, a corporate Trustee. The Trustee can act solely by him or herself or you can have Co-Trustees or several Trustees, by majority, or any other method of administration which is limited only by your imagination.
5. With respect to determining your disability, if married, you will be deemed disabled when you are no longer effectively able to manage your property or financial affairs by the opinion of your family/attending physician and your spouse.
If your spouse is not available or you are not married, you need to select someone to work with the doctor to determine your disability. You may select a child or your children by majority or unanimous vote, or any other combination.
6. Finally, you will need to provide the actual provisions of your Trust, i.e., How do you want your assets distributed after you are gone? Do you want to treat your children and grandchildren equally? Do you want to make sure your assets stay within the bloodline? Remember you can control your inheritance. Examples of this are that you can distribute your assets quickly, all at once; using installments at certain ages; using certain percentages at specific ages; using exact percentages or amounts upon a specified number of years after you are gone; and/or for a specific purpose such as education, medical and hardship. I’m sure you realize by now that the terms of your trust are limited only by your imagination.
I will also need copies of your real estate deeds.
It is my intention to provide you with a comprehensive living trust centered estate plan, consisting of a Revocable Living Trust, Pour Over Will, Durable Power of Attorney, Patient Advocate, Real Estate Transfer Documents, a Funding and Administration Guide, Certificate of Trust and Assignments of your Tangible and Intangible Property. If you are married and estate tax planning has been discussed, you will each receive your own trust. Further, if you are married there will be two Pour Over Wills, Durable Power of Attorneys and Patient Advocates.
As I have already explained to you, I am offering you a one hour free consultation. At the end of this consultation, I will provide you specific recommendations and, in most cases, a flat fee for my services. Additionally, you will be presented with a fee statement for your consideration and signature. Assuming you wish to proceed, it is our office policy that one-half of the total flat fee amount is expected before any work begins. The balance is due when the documents are signed. The entire process should take no more than four to five weeks. After signing the documents, you will have a three month period to review your documents and request revisions to them at our expense. Any costs for revisions subsequent to three months from the date of signing the documents will be your responsibility. The reason for this policy is that, in the past, when we have mailed out a rough draft of the estate plan, most clients would procrastinate and take several months to review them. We have had one very unfortunate circumstance occur while the client was thinking about reading the draft of their documents.
Should you have any questions or wish to discuss any of the issues raised within this letter, please feel free to call me. If you should call and I am not available, please leave a message with my secretary and I will get back with you as soon as possible. Under any circumstances, we have a policy in our office of attempting to return all telephone calls within twenty-four hours.
I would like to thank you for the opportunity of providing you with your personal estate planning services for you and your family.
Very truly yours,
BARRON, ROSENBERG, MAYORAS & MAYORAS, P.C.
Don L. Rosenberg
Danielle B. Mayoras