Upon your death, your will is used to disburse your assets to those persons you wish to inherit. In your will, you name your Executor (the person or persons you wish to manage and disburse your estate) and a successor, in case the named Executor cannot serve, you determine what specific items (valuable or sentimental) you wish to leave to specific people, and after those specifics, a general clause for everything else, called the "rest and residue clause". If you have minor children, you will want to name a guardian and create a trust within the will and name a trustee to protect and preserve your assets that you leave to your children.
You should consider what will happen to your assets if your spouse does not survive you, and make plans accordingly. Finally, you should make your choices known to those persons you choose to perform the functions of Executor, Trustee and Guardian.
Your real estate does not necessarily need to pass through the probate court. If you create a trust for your primary residence (a Living Trust) you will have the advantage of avoiding probate. By taking this step, you will accomplish three goals: your heirs will not have to pay for the probate process, your heirs will not suffer the long delay involved in acquiring possession of the property, and the whole thing will be private. Probate is lengthy, public and expensive.
Do yourself a favor and find out about trusts for all of your properties.
Living Will or Health Care Proxy
The documents mentioned in this section are used in different parts of the country, depending where you live. Many states use what is called a Living Will. In Massachusetts, we use a Health Care Proxy. The documents serve basically the same purpose. If you enter a hospital and are unconscious, or if you become unconscious while you are a patient, you cannot make health care decisions for yourself. These documents allow you to name a health care agent to make the necessary health care decisions for you. You normally choose an agent and also an alternate agent, in case the first named person cannot do the job. You need to be very clear as to what you want to have take place on your behalf so that your agents know your wishes. If you are not clear, and if the agents are not sure of your wishes, you run the risk of the physician deciding what is best. This may oppose your desire to avoid heroic methods of care, such as feeding tubes and breathing tubes.
Power of Attorney
A power of attorney is effective while you are alive. When you die, it ends. With this document, you appoint someone to make decisions and act on your behalf, if you are not able to or just choose to have someone you trust take care of normal responsibilities for you. A power of attorney can be specific, such as appointing someone to represent you at a sale of property if you cannot attend the closing. It can be limited to specific actions, such as writing checks and depositing and withdrawing money for you, or it can be broad and durable. A durable power of attorney is effective even if you become disabled or incapacitated.
Estate planning is an important part of life planning. Wills, powers of attorney, health care directives and trusts are all part of the process of protecting both yourself and your family's future. When considering any of these protections, please speak with a competent estate planning attorney. Remember, when considering estate planning, don't put it off, because there's no guarantee of what may or may not happen tomorrow.
Believe me when I say: there's no better time than right now!
Additional resources provided by the author
Articles by Robert Bruss at inman.com are an excellent source of information about trusts and real estate matters.
Nolo.com is another good source of information on a broad range of legal subjects, including estate planning.