An estate planning checklist is essential for anyone looking to develop an estate plan. And that should be, well, everyone. Regardless of where you are in life, having an up-to-date estate plan is a smart move and can help to ensure that the people and causes you care about are protected. Particularly for ultra-high-net-worth individuals, an estate plan is critical to avoid major headaches and potentially lengthy court proceedings for any heirs.
Primary among those court proceedings is probate, which is a legal process that involves the reviewing of assets left behind after someone passes away, which ultimately determines who will inherit those assets. Probate can be a lengthy, expensive, and potentially contentious process for heirs without a comprehensive estate plan in place.
Unfortunately, only slightly more than 30 percent of Americans have an up-to-date estate plan. Don’t be part of the majority that puts off creating an estate plan. Rather, enjoy the peace of mind that comes with carefully and thoughtfully expressing your wishes through an estate plan.
An estate plan typically includes four basic documents, which are highlighted below:
- A Will
- A Revocable Trust
- A Power of Attorney for Financial Affairs
- A Power of Attorney for Healthcare
Will
A will accomplishes two major things: most importantly, it names guardians for any minor children. Next, a will provides that any assets that are not already in a revocable trust will be transferred into a revocable trust at the time of your passing.
Revocable Trust
A revocable trust should hold substantially all of your assets. During your lifetime, you will use the assets as if you still owned them directly. At your death, a trust will direct how the assets will be held or distributed.
For a married couple, often times a trust will provide for a family trust and a marital trust. The family trust may be funded up to the amount that can pass federal estate tax free. The current lifetime exemption is $12,920,000 per person (scheduled to drop to half that amount in 2026). Accordingly, provided you have not used any of your exemption by making gifts above the annual exclusion, a family trust may receive the first $12,920,000 of assets. A marital trust would receive the balance.
The beneficiaries of a family trust are often the surviving spouse and children. The beneficiary of a marital trust is only the surviving spouse.
At the death of the surviving spouse, a marital trust and family trust are often combined and then divided among heirs. The assets can be distributed outright, but we recommend that the assets remain in separate trusts. The trustee then administers the trust according to its terms, which reflect your wishes. Trusts provide creditor protection for heirs and assurance that remaining assets remain in your bloodline.
Power of Attorney for Financial Affairs
A power of attorney for financial affairs appoints an agent to have the authority to access property and handle other financial matters. The main purpose is to transfer assets not already in a trust into your trust. Again, most states have a preferred form for this purpose, but it may be called something else, such as a “Durable Power of Attorney.”
Power of Attorney for Healthcare and Living Will
A power of attorney for a healthcare and living will appoints an agent to make decisions regarding your healthcare in the event you are unable to do so yourself. Most states have a preferred form for this purpose, but it may be called something else, such as “Designation of Healthcare Surrogate” or “Advanced Medical Directive.” The living will designates whether and the extent to which you want to have life-prolonging procedures administered if you are terminally ill or in an end-stage condition where death is imminent (or in a prolonged vegetative state with no chance of recovery).
So, with an understanding of the primary components of an estate plan, let’s explore the checklist of questions to ask in creating an estate plan. Work closely with your estate planning attorney and financial advisors in developing your specific plan.
Estate Planning Checklist – Questions to Ask
Estate Planning Attorney: Do you need an estate planning attorney? The answer is likely, “Yes.” An estate plan is a legal document that can be quite complex. Particularly for ultra-high-net-worth individuals, seeking the counsel of a qualified estate planning attorney is essential.
Job Designations: For all the roles within an estate plan (executor, trustee, guardian, etc.), whom do you want to appoint to serve in those roles?
Succession: If the person you have named to perform a role ceases to act, who will succeed that person? After the last-named successor ceases to act, how will a successor be named?
Discretion: Will the person you have named be given broad discretion in performing his or her function, or will you try to limit such discretion?
Compensation: Do you expect the person you have named to serve for free, or will they be compensated in some manner?
Removal: After your death, do you wish to give someone the power to change the persons performing the different functions in connection with your estate?
Beneficiaries: After your death, who will be entitled to receive assets from your trust? A surviving spouse, children (if any), other family members, charity, or a combination of the foregoing?
Power to Redirect Trust Property: How much control (if any) do you want to give your surviving spouse over the disposition of your portion of the family assets at his/her death? What about your children?
Beneficiary as Trustee: Do you want your children or other beneficiaries to become actively involved in the management of assets held for their benefit when they reach a certain age?
Specific Gifts: Do you desire to leave any gifts to family members or friends other than those individuals named as beneficiaries? Perhaps to charity?
Medical Care: Has the family discussed wishes related to health care decisions?
Utilizing the estate planning checklist and key questions above can provide an excellent starting point for developing or updating your estate plan.
