Creating an estate plan is important because everyone will die sooner or later and many people will become incompetent (for a variety of reasons including illness or injury) at some point during their lives. Planning for these situations minimizes difficulty and expense for family members who will suffer the impact. Circumstances and pertinent laws change over time, so estate plans should be reviewed and revised as appropriate, in order to adjust to the current situation. Every estate plan should be prepared based upon the specific facts and circumstances of an individual’s situation.
In general, people do not have legal capacity to sign documents until they have attained the age of majority. Therefore, people should begin to consider estate planning when they are no longer minors but have reached the age of 18 years.
Young adults often have relatively few assets. However, they should be concerned with the possibility that a sudden accident, injury or medical condition could cause temporary or permanent incompetence. Serious health conditions, motor vehicle accidents, and sports injuries occur all the time. When one is not competent to transact personal business or make medical decisions, the commencement of court proceedings to appoint a guardian (who will make decisions about his or her “person“) and a conservator (who will take control of personal business affairs and assets) would be needed in the absence of a duly executed health care proxy and durable power of attorney. Even if a young adult does not have a will or trust, he or she should execute a health care proxy and a durable power of attorney in order to eliminate the need for public court proceedings that would involve significant time and expense.
As young adults grow older, many will marry, and many will have children of their own. At that point, adults should consider signing wills, as well as appropriate trusts, in order to provide for the distribution of assets and the protection of those assets for the benefit of a spouse, minor children, and other beneficiaries. Updating health care proxies and durable powers of attorney is important because the choice of agents is likely to be different when a person has a spouse. The type of will and trust can often be relatively simple when no special circumstances exist and no estate tax liability is present. When one purchases a home, he or she should consider the execution and recording of a declaration of homestead in order to provide additional protection for the principal residence against the claims of most creditors.
As adults grow older, it is important to review the existing estate plan periodically. Changes occur in family and other relationships, the type and value of assets, and the choices of appropriate fiduciaries and agents. When parents have adult children and minor grandchildren, a further review of the estate plan is appropriate. Adult children may be more appropriate choices as fiduciaries than previously selected siblings or friends. In addition, those old enough to have grandchildren may also have sufficient assets to require special estate tax planning devices and asset transfers. Plans for such persons may involve more complex estate tax minimization trusts, and may also involve irrevocable trusts in order to minimize estate taxes and effectuate specific types of transfers.
Regardless of when a person begins the estate planning process, it is important to review the plan periodically. Everyone‘s situation changes over time. In addition, laws relating to wills and trusts change from time to time. It is important to change one’s estate plan in order to adapt to those changes. Consultation with a qualified professional is appropriate in order to achieve the best results.
Attorney Marvin S. Silver, a partner at the law firm of Christopher, Hays, Wojcik and Mavricos, LLP, practices in the areas of estate planning and administration in the Westborough office of the firm, which is located at 45 Lyman St., Suite 15. He is a Fellow of the American College of Trust and Estate Counsel and is recognized in the Trusts and Estates category in Best Lawyers in America, regarded by many in the legal profession and the public as a guide to legal excellence in the United States. He can be reached at 508-986-9430 and Msilver@chwmlaw.com.
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