Accisano Law - Estate Planning, Probate and Living Trusts Attorneys

What is Estate Planning?
Estate planning is the process of arranging one's property and affairs to provide for death, incapacity or other eventualities, in a way that maximizes legal benefits while carrying out the person's intent.

Who Needs Estate Planning ?
Almost any adult person who owns meaningful property or has children should inquire into estate planning. Some examples of people who must address the issue are:

If you have minor children, you need an estate plan. (See question #3 below).
Whatever the size of your estate, you should prepare a simple plan to designate the person who, in the event of your incapacity, will have the responsibility for the management of your assets and your care.
You may need an estate plan to minimize Estate Taxes. In New Jersey, a person who has an estate valued as little as $675,000 (including real estate, retirement accounts, and life insurance proceeds) may need to draft an estate plan which addresses Estate Taxes.
A person who only has a will probably needs additional estate planning.
A person who only has a power of attorney probably needs additional estate planning.
If you do not wish for your assets to pass to your family, you should have an estate plan.

Who has the legal responsibility to care for my children if both parents die?
If both parents pass away, a "Guardian" is the person legally charged with attending to the individual needs of the children, such as medical and educational decisions. A child's "Trustee" is the person who is legally responsible for managing the property left to children until they are old enough to do so themselves. The guardian and the trustee are often the same person, but not always.

If you do not have an estate plan, the Courts will appoint the guardian and the trustee. There are multiple drawbacks to this scenario, some of which are as follows:

the potential for a "tug-of-war" between well-meaning family members, where each deceased parent's family seeks the right to raise the children, substantially increases if you do not have an estate plan. This results in increased legal costs (paid by your children's estate), and a possible battle between the families at the time your children need them to cooperate the most.
a Judge who may never have met your children will decide who will care for their well-being until they reach the age of majority;
The children receive full control over the property you leave them when they turn eighteen, when they will likely not be ready for such a responsibility.

If the parents prepare an estate plan, they appoint the trustee and guardian, and specify how the children's property is to be managed, and at what age it should be released to their control.

Who should I choose for the guardian and trustee of my minor children?
This is the most difficult issue in estate planning, and there are no simple answers. With regard to selecting a trustee, you should choose the person whom you most trust to make financially sound decisions in managing the children's property, in accordance with the instructions in your estate plan. With regard to guardians, you should choose the person whom you most trust to make proper parenting decisions for your children until they reach the age of majority.

These are not easy decisions, and require thorough analysis. In making your determinations, you should remember:

The only consideration is "what is in the children's best interests". Do not be concerned with hurting the feelings of family members or one side of the family. Your children need you to make the proper decisions for them, even if it means unintentionally upsetting others.
Do not try to identify someone who can replace you as a parent - no one ever can. Make the best decisions for your children based on who is available.
Remember the ages of your Trustee and Guardian. Your children may need their guidance for decades to come. If possible, appoint people who are young enough to be there for your children for years.
If you feel that there is a reasonable chance that one or more of your family members will try to invalidate your decisions in your will, you need to inform a qualified attorney who is preparing your estate plan.
If you do not know anyone who would make a suitable trustee or guardian, you should seek the advice of a qualified attorney.

Do I need a Will if I have a Power of Attorney (or vice versa)?
Yes. A will is a legal document in which a person gives directions regarding what is to happen to his or her property and affairs upon death.A will only becomes effective upon that personís death. A power of attorney is a legal document in which a person appoints a person to have control over some or all of his or her property during life. It is only effective during that person's life.

Usually, wills and powers of attorney are only components of a proper estate plan. A qualified attorney will help you determine what documents should be prepared, and what other steps should be taken, to best provide for your estate plan.

What information will my attorney need in order to start on my Estate Plan?
Your attorney must conduct an analysis before actually drafting documents. However, to "get the ball rolling", you should have the following information ready when you speak to your attorney:

Your full name and current address;
The full name and address of your spouse;
You should have a general idea of how you want your property to be disbursed to your heirs.
If you are able to choose them without your attorney's help, the full names and addresses of your executor, trustee and guardians.
If you are able to choose them without your attorney's help, the full names and addresses of your alternate executor, trustee and guardians. These are the people who would "step in" if your first choices are unable or unwilling to serve.
You should have a general idea of the value of your entire estate, including real estate, life insurance, businesses, retirement plans, etc. Depending on the value of your estate, your attorney may have address estate taxation issues.

Will a Revocable Living Trust help save Estate Taxes?
NO. A revocable living trust, while useful for many purposes, by definition will do absolutely nothing to save estate taxes.

Will an Estate Plan only minimize Estate Taxes if you are married?
NO. While there are benefits available to married people, it is possible for unmarried people and those in New Jersey Civil Unions to take steps to minimize Estate Taxation.