Estate planning is essential. Some key documents make up a comprehensive estate plan, including wills and trusts. Not everyone needs both, but our Dover wills & trusts attorneys at Batson Nolan PLC can help determine what’s best for you. Contact us today.
Do You Need an Estate Plan?
Death or incapacity can happen instantly, and it is best to prepare for that possibility ahead of time. If you have children, pets, or loved ones that depend on you, who will continue to care for them? Planning ahead to put money aside and caretakers in place to protect the people you love can give you tremendous peace of mind.
Using documents like wills and trusts to plan ahead is also an opportunity to make your wishes clearly known and avoid confusion if you unexpectedly die or become incapacitated. Having these documents in place can also help alleviate conflict and disagreements between family members when the time comes to administer your estate.
It is wise to create wills and trusts to make your wishes known ahead of any emergency. These documents can be used in very specific ways to accomplish your goals—but doing so requires experience and an in-depth review of your particular situation. At the law firm of Batson Nolan PLC, we have more than 160 years of experience creating wills and trusts that cater to our clients’ unique needs.
What Is a Will?
A last will and testament, or a “will” as it is often referred to, is the foundational document of many estate plans. It’s where you have your final say and communicate your wishes. Here are the important decisions you make when writing a will.
Name Beneficiaries and Distribute Your Assets
The main purpose of a will is to specify who gets what property in your estate. You can name individual beneficiaries (such as “my daughter Kate”) or a class of beneficiaries (such as “my surviving children”) to inherit cash, property, or both.
Appoint an Executor
With a will, you also choose an executor to administer your estate. This person is responsible for following the directions laid out in your estate plan, so you want to choose someone you trust. If necessary, the executor will initiate probate for your estate and oversee the entire process.
Protect Minor Children
If you have minor or disabled children, it is important to name a guardian to care for them. The court ultimately decides who the guardian will be, but the person you nominate in your will gives the judge guidance. If you do not name anyone, the court will appoint whoever they believe is best suited for the role.
What Happens If You Do Not Have a Will?
If you die without a will, Tennessee law determines who inherits your property. What happens under Tennessee’s intestate succession law may not be your first choice. If your spouse survives you, they will inherit your estate first, then your children, then your parents, and so on until the entire estate is distributed. So it’s entirely possible that a distant cousin could get your property if they outlive other relatives and you do not have a valid will.
Even if you create a will, if you do not do it properly, the law treats your estate as if you died without a will. A will is no use if it is invalid. The document must meet all legal requirements under Tennessee law to be enforceable. For example, the will must be:
- Created by someone of sound mind;
- Created by a person who is at least 18 years old;
- Signed in the presence of two witnesses; and
- Signed by both of those witnesses.
We are here for you if you need a lawyer for wills and trusts. A Dover wills & trusts attorney at Batson Nolan PLC can help by taking will take the necessary steps to execute all your estate planning documents properly and ensure that they are legally binding.
What Is a Trust?
A trust is a legal entity that owns assets, where a trustee manages the property on behalf of a beneficiary. You can set up a trust for many different reasons ranging from Medicaid planning to charitable giving.
What Are the Advantages of a Trust?
The advantages of a trust depend in large part on what type of trust you create. However, in general, it is possible to realize the following advantages by creating a trust:
- Reducing the number of assets that must pass through probate,
- Reducing the amount of estate tax payable to the federal government,
- Protecting assets from creditors,
- Providing for the ongoing needs of loved ones with special needs,
- Limiting the amount of spend-down needed to qualify for Medicaid, and
- Controlling a beneficiary’s access to trust funds.
While all of these are potential advantages of a trust, it is important to understand the different types of trusts, as well as their benefits and drawbacks.
Types of Trusts
Trusts vary widely in terms of the flexibility they offer as well as the benefits they provide. Trusts fall into one of two broad categories, revocable and irrevocable trusts. A revocable trust provides incredible flexibility, which makes it a good option for those concerned about the circumstances changing over the years. While assets transferred into a revocable trust do not need to go through the probate process, trust assets still technically belong to the grantor of the trust. Thus, revocable trusts do not confer asset protection or estate tax benefits.
Irrevocable trusts, on the other hand, are more rigid but provide a wide range of additional benefits—including protection from creditors. Assets transferred into an irrevocable trust legally belong to the trust, not the grantor. This means that these assets are not considered part of your estate when calculating estate tax or when applying for Medicaid.
While all trusts are either revocable or irrevocable, there are many specific types of trusts within these broad categories that are used to accomplish specific needs. Below is a list of some of the most common types of trusts.
A living trust (or revocable trust) is a special type of trust that’s designed to avoid probate. You create the living trust while you are alive and name beneficiaries to receive the trust assets when you die. Property held in a living trust does not go through probate. However, one downside of this type of trust is that it does not provide asset protection. Creditors can still access property and cash that is put into a living trust.
Special Needs Trusts
Many individuals who have special needs or live with a disability rely on government benefits to help them cover their basic living expenses. However, if an individual receiving public assistance inherits a large sum of money, they may no longer be eligible for those much-needed government benefits. A special needs trust is a type of irrevocable trust that can provide for the ongoing needs of a disabled individual without affecting their eligibility for government benefits. Special needs trusts may be created by an individual for their own benefit (first-party special needs trusts) or by their family members (third-party special needs trusts).
A charitable trust is another type of irrevocable trust. It can provide significant resources to a charitable organization while conferring certain tax benefits to the creator of the trust. In a way, the tax benefits of a charitable trust are twofold because the creator of the trust reduces the taxable value of their estate while also gaining the ability to claim a deduction for the donated amount.
Those with questions about which type of trust best suits their needs should reach out to a Dover wills & trusts attorney at Batson Nolan PLC.
What Other Estate Planning Documents Should You Have?
Estate planning is not just about planning for life after death. It also encompasses lifetime planning. If suddenly you could no longer manage your finances or care for yourself, who would step in? With documents like powers of attorney and a living will, you can designate someone you trust to make decisions for you.
Powers of Attorney
A power of attorney is a legal document that grants someone (the agent) the power to make decisions on your behalf. You can limit this person’s power to something specific (such as paying your bills while on an extended vacation) or keep it broad.
A durable power of attorney is commonly included in estate plans. This specific type of document allows the agent to act if you lose mental or physical decision-making capacity.
With a living will, you specify your preferences in terms of medical treatment. This document is used if you cannot communicate your wishes yourself. Tennessee has an Advance Directive for Healthcare form that allows you to appoint a healthcare agent to make decisions for you and select your medical treatment preferences. This includes decisions about the quality of life, tube feeding, life support, organ donation, hospice care, and burial arrangements.
Our Dover Wills & Trusts Lawyers at Batson Nolan PLC Have the Experience You Need
If you are ready to start planning your legacy, we can help. It is important to work with wills & trusts legal team that knows the intricacies of Tennessee law. They also need to be able to offer creative legal solutions that help achieve your goals. Our Dover wills & trusts lawyer takes the time to understand your unique situation, and then we craft a tailored estate plan that will carry out your wishes.
At Batson Nolan PLC, we have been helping Tennessee families since 1860. The firm has the highest peer review rating (“AV Preeminent”) from Martindale-Hubbell, which indicates our firm’s professional excellence. Call us or go online to request an appointment. We look forward to providing you with exceptional legal services.