Estate Documents… Are You Aware Of The Consequences?

Thursday, December 4, 2014 | Leave a comment

When was the last time you reviewed your will? For several years, this was my “P.S.” at the end of each e-mail that was sent. Are you aware that 75% of Americans do not have an estate plan? Are you aware that in order to have an effective retirement plan that you also need an effective estate plan? You might think that an estate plan is something that is needed for people who are retired or getting ready to retire. The bottom line is, each adult should have an estate plan whether it is simple or complex. In simple terms, an estate plan is an outline, which will give instructions on who would raise your children if you pass away unexpectly. It will also provide instructions on how you would like your assets distributed at whatever age you pass away. A properly designed estate plan can save our loved ones a great deal of grief, time delays, and money. An effective plan can protect our interest and our assets if we become incapacitated.     An effective estate plan should consist of a Last Will and Testament, Financial Power Of Attorney, Health Care Power Of Attorney and a Living Will. Below is a description of each of these documents.

  • The most common Estate Document is a Last Will and Testament. The cornerstone of an effective estate plan. This allows you to decide who gets what you leave behind. Are you aware that without a will the state has a distribution scheme for you? In most cases, this would not be what you may have wanted. For example, the state would dictate who would finish raising your minor children. By having a will, you can state your wishes. Are you aware that without a will the state can appoint someone (could be a total stranger) to distribute your belongings?   By having a will, you can eliminate many expenses that your estate would occur without one. When putting together a will, there are several key positions that you will need to select people for. Listed below are those positions that would need to be designated. Keep in mind; one person can hold more than one designation.   When establishing your estate document, you are required to be in sound mind.
  1. Executor – This is the person you would designate to carry out your wishes. Most couples will name their spouse. Because you don’t know if your spouse will pass away prior to you, it is suggested that an alternate be named as well. Most states prefer that the executor reside in the state that you live in. The executor’s role does not begin until you pass away.
  1. Beneficiary – The person or persons or charity that will receive what you leave behind. You will not need to itemize as your will contains a memorandum that allow you to designate certain items to those individuals. Since this is your will, if you desire you can set certain conditions/requirements for your beneficiary to receive certain things or a sum of money. In working with clients some of the requirements/conditions have been quite interesting. You can also establish an age of distribution for your loved ones to receive your assets. In some cases, I have had clients have half at a certain age and the last half several years later. What is important to remember is that this is your will and you can dictate all of the terms.
  1. Specific Bequests – This is the memorandum that was stated above. You can state I would like Johnny to have my baseball card collection or Susie to have all my dishes, etc. If a portion of your money is going to a charity, you can name a certain project you would like them to do with your monies. In one case, I had an avid gun collector assign certain guns to specific grandchildren.
  1. Trustee – If you have minor children or adult children who are handicapped or have a hard time managing monies, you can name a person to supervise their portion of the inheritance. In most cases, an alternate is suggested.
  • Durable Power Of Attorney – This is the person who is your “attorney in fact” to act on your behalf if you become incapacitated or absent for an extended period of time. Most couples will appoint their spouse, as they are the ones most familiar with the finances of the household. If you are single, then it is necessary that you select someone over the age of 18 who is in sound mind. It is suggested that this person live in the state you reside. Upon your death the person named their responsibility ends. Upon completion of your Power Of Attorney document it is suggested that you have it recorded in the county you live in.
  • HealthCare Power Of Attorney – This person performs the same duties as stated above but for reasons related to your health care. Most couples will select their spouse unless you have a love one that is in the medical field, who can provide professional guidance. It is suggested that this person live in the state you reside. Once this document is completed, it is good to provide a copy to your primary physician. They will make this a part of your permanent file.
  • Living Will – If you would become terminally ill, you can express how you would like to live your final days. Using this document, you can express what type of health measures you would like to be kept alive by extraordinary means. By stating your desires, you take the difficult burden away from your loved ones. With the cost of health care, this could save a large amount of money. As suggested with the Health Care Power Of Attorney, your Living Will once completed a copy should be given to your primary physician.

These are the recommended documents for an effective estate plan. Upon completion, the documents must be notarized. Two witnesses that are not mentioned in the documents or related to the person having the legal work done will be required to sign in front of the notary.   In future blogs, I will explain two other documents that can play a role in your estate planning.

If you reside in North Carolina, this is a service that our firm provides through the guidance of Legacy Estate Services. Licensed attorneys are contracted and provide customized documents for your particular needs. Legacy provides quality documents at a lower cost than most legal firms.   Anyone outside of the Tar Heel state should consider a licensed attorney in your state, legal zoom or other comparable legal services.

To learn more about John CasaSanta please visit our website If you have any questions for John please e-mail him at or call 704-451-7020.

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