I represent clients who are interested in estate planning. First, a prospective client completes a confidential estate planning questionnaire that includes detail information of the prospective client’s assets, liabilities, family structure, obligations, current goals, and retirement goals. Upon completion of the questionnaire, I meet with the prospective client to discuss the information provided to me. Thereafter, I provide the prospective client an estate planning proposal and a draft engagement/fee agreement which includes an estimate legal fee. At this time, the prospective client decides whether or not to accept the proposal. If the prospective client decides not to proceed with the proposed estate plan, then there is no further obligation between the prospective client and myself except that I will keep information the prospective client provided me confidential pursuant to my privacy statement and Rules of Professional Responsibility. The prospective client may keep the proposal and no legal fees are owed. If the prospective client accepts the proposal and engagement/fee agreement, then the client and I create a plan which is tailored the client’s needs and generally includes a durable power of attorney, living will, health care proxy, will and trust(s). Joint Representation by and between a married couple or partners is allowed in most cases and explained in the JOINT REPRESENTATION section on this page. The following is a brief description of instruments included in an estate plan.
Durable Power of Attorney
A Durable Power of Attorney is an instrument in which you appoint an agent or “attorney in fact” to be your lawful attorney to conduct all your affairs, with full power and authority to act in your name and on your behalf as fully as you could do if you were personally present. A Durable Power of Attorney is primarily used in the event that you are not able or available to manage your affairs. In a Durable Power of Attorney, you may name a conservator in the event that you become disabled or incapacitated. In some cases, a Durable Power of Attorney will become effective upon execution and should be kept in a secure and safe place with your other estate planning documents until such time it is need.
Living Will and Health Care Proxy
A Living Will is an instrument that states the principal’s intent and wishes regarding whether to use or not use extraordinary measures to sustain the principal’s life. Living Wills do not have statutory authority in some jurisdictions, but do provide important direction and instruction regarding your intent and wishes. A Health Care Proxy is an instrument authorizing a trusted individual, the “health care agent,” to make medical decisions for the principal at such time as the principal lacks capacity to make such decisions.
Will and Pour Over Will
A Will is an instrument that sets forth your wishes and disposition of your property once your die. A Will provides instruction on how your wishes and disposition of property will be carried out, and who is responsible for carrying out your last wishes. A Pour Over Will allows your property to “pours over” into a Trust without the property first being probated in Court. Your Will allows you to nominated a trusted person to be the executor of your estate. In most jurisdictions your executor has to be approved by the Probate Court; however, your choice of an executor is generally given deference by the Court.
A Revocable Trust is an instrument which allows you to hold and distribute your property privately and without court oversight. You may choose to fund your trust with your assets during your lifetime or you may wait until your death to fund the trust. During your lifetime, you have total control of the trust and may take distributions of income and principal due to the fact that you are both the settlor and trustee. At anytime, you may revoke the trust at anytime prior to your death. Also, your trust will be treated as your own property for income tax purpose and no additional taxes will be due or tax filings will be needed.
Once you die, your trust becomes irrevocable and will be funded with your residuary estate pursuant to the “pour over” provision of your will. You choose your trustee and give your trustee powers to effectuate your goals and wishes. Your spouse will benefit from your trust because your spouse is allowed to receive the income generated by the trust and will be allowed to use trust funds for most needs.
Among the many benefits of your trust is the establishment of subtrusts to maximize both Federal and state tax credits and to meet particular needs and goals. A subtrust known as a family trust will be funded at the maximum amount allowed to pass free of both Federal Estate taxes and state estate taxes. Your remaining estate with then pass estate tax free to a marital trust until the death of your spouse. Finally, you may have any number of subtrusts to meet a particular need or goal.
Other Types of Trusts
There are numerous other types of trusts used to effectuate a particular purpose including beneficiary protections, tax compliance, and asset preservation.
Principles of legal ethics permit joint representation of more than one client in the same matter, but only under circumstances of full disclosure and agreement by the clients, and only upon the attorney’s conclusion that joint representation will not adversely affect the Firm’s relationship with each client. In accepting this matter, the Firm has concluded that the Clients’ interests and objectives are sufficiently similar to make joint representation appropriate. However, each Client also must remain confident that no real or perceived conflict of interest is created by joint representation. Furthermore, if either Client provides the Firm with confidential information, the Firm must provide that information to the other. For example, if one Client decides to change his/her Will, the Firm shall inform the other Client. Both Clients shall release the Firm from any liability for damages resulting from such disclosure. Should a conflict of interest arise, the Firm will withdraw from the representation of both Clients.