How to Prepare an Estate Plan
Updated: Feb 4
When it comes to preparing an estate plan, an attorney has everything you need to start planning your estate. Check out some tips or schedule a free consultation today.
Your Estate Plan and Our Blog
Your estate plan guides your future and makes your wishes known. Our blog can be a helpful way to get you started, but you should always consult an attorney for best results.
Where should I keep my estate plan?
Most individuals keep copies of their estate planning documents in a safe at their residence.
Keeping a digital copy of your will is important just in case the original is lost. However, keeping digital copies of your other documents may not be as beneficial because most of the time your originals will need to be filed or recorded.
Durable Power of Attorney
This documents allows someone to literally step into your shoes, speak on your behalf, or make decisions for you. Typically this document is effective upon signing and can spring into effect later when you become incapacitated.
You can also limit these powers. For example, your power of attorney could be limited to accessing your bank, but only to pay for rent, or for litigation purposes.
General Power of Attorney
This document is very similar to a Durable Power of Attorney. However, it may end when you become incapacitated. As such, this document is not as common as DPAs.
Advanced Healthcare Directive (Living Will)
This document directs someone, such as a physician, to do something when you are in an advanced state of medical duress. If you're in end stages the document may direct whether: you want ventilator, feeding tube, pain medicine, and/or treatment. This takes a big burden off of other individuals in your family who may be faced with extensive medical bills or artificially prolonging your life.
Mental Health Power of Attorney/Directive
This documents allows someone to step into your shoes if you're affected by a mental health diagnosis. If you're reading this then more than likely you are in sound mind now, but down the road you may run into an issue. Typically the person affected works with their mental health team to create a plan and this document is part of it.
What happens when someone goes wild with your POA?
You can revoke your power of attorney
Sometimes banks want you to sign their own Power of Attorney. As such, take your POA to your banks and make sure they accept it
If they do not accept it then you can fill out the power of attorney drafted by your bank's lawyers that is likely specific to that bank
Send a letter to the person who is being revoked, along with the revocation
You should present your revocation documents to the banks and other people who deal with those powers
Similar to an advanced directive. Your hospital may want you to fill out a PULSE Form with them. An advanced directive is more portable than a PULSE form because it is created by statute.
What happens when you fill out two PULSE documents? The most recent one is most applicable.
Do I need a will?
Maybe not. If you have a will then your heirs will typically want to open a probate. If you do not have a will and your estate is under $100,000 then you may be able to get away with preparing small estate forms to wrap up the estate.
Can I avoid probate?
Yes, probate typically is an expense that you may be able to avoid. For example:
You can put beneficiaries on your financial accounts.
You can put put properties into trust.
You can use a transfer on death deeds to automatically transfer properties outside of probate.
What happens if I do not have a will?
When you do not have a will then your estate has to pass through the intestacy of your specific state. Most people would rather personally decide their last wishes than have their state government decide. In addition, a will makes it less likely for contested probate trials when a will is expressly written. And so I always recommend a Will.
What if I need a will?
If something is not automatically transferred then a will can catch those assets and guide how to distribute the remainder.
As always speak with an estate planning attorney before drafting your very important estate planning decisions.
When would I need a trust?
A trust does not need to go through probate. However, it is typically much more expensive to prepare. Moreover, many people forget to title assets into trust and those assets end up in property anyway.
If you do put properties and bank accounts and you put them into trusts then those assets do not need to pass through probate.
I get a lot of trust questions from people from California because probate is much more expensive there than in Washington. However, unless you have a very large estate I can typically avoid probate for individuals and families with alternative planning.
As always speak to an attorney that can personally draft documents based on your specific personality and needs.
Trusts in WA
In at least four circumstances we recommend looking into trust arrangements. First, if you own property in two different states then a trust may help your beneficiaries avoid the expense of two probates. Second, if your state has statutory attorney's fees for probates. Third, when you have minor children and you would like to withhold their bequests until they reach a certain age. Lastly, if you have assets above the estate tax limit then a trust may be beneficial to avoid a high tax burden.
Proposing a Guardian
It is very important to propose a guardian for your minor child. If you do not have a guardian clause in your will then the state will go through their own process. Which will go through their way the state's process.
Do I need new estate planning documents if I move to a different state?
Generally no. If your estate planning documents are validly drafted in your state then they will be valid in other states you move to as well. Unless, there are specific provisions that invalidate the documents upon moving. For example, a community property agreement may state that it is no longer valid if the parties move to a new state.
Who can witness my will?
Witnesses are people who observe the executing or signing of legal instruments, such as wills. Witnesses are sometimes needed in order for a document to be valid.
Witnesses to a will must be competent and have observed the will being signed, then signed the will as a witness in the presence of the testator and pursuant to the testator’s wishes or direction.
Technically speaking, an individual is deemed competent to be a witness to a will unless they are incapable of communicating their honest and truthful impressions of facts, or are of unsound mind. However, a witness should not only be competent. Testators should select witnesses who can read and speak the English language as well as be at least 18 years old. It is not required of the witnesses to know the testator personally, as the witnesses can be complete strangers.
Furthermore, a witness to a will should not be a person who may receive a gift under the will. Such a person would be considered an “interested witness.” A will is not invalid simply because one of its required witnesses was an interested witness; however, any gifts in the will to the interested witness will be presumed to have been procured through duress, menace, fraud, or undue influence, and unless the interested witness can provide sufficient evidence to rebut this presumption, the witness will only be able to receive what the witness would have received under the laws of descent and distribution in intestacy had the testator died without a will.
Where should I keep my original documents?
You can file the original with the court or you can retain the original. Most people keep their wills in their possession, such as in a safe.
Our law firm securely keeps digital copies of our clients' wills so you always have a backup here.