• Law Office of Christopher R. Chicoine

Documents You Should Have in Your Estate Plan

Updated: Nov 30, 2021

This article explores common estate planning documents for the basic estate plan. Circumstances may require variations, but generally some documents that should be included are the following:


Last Will and Testament


This is perhaps the most important estate planning document. A last will and testament can accomplish the following:

  • Distribute probate assets

  • Nominate estate executors

  • Nominate guardians for minor children

  • Create a trust on your death to hold assets for minor children (alternative is UTMA account. In WA, minors cannot receive inheritance outright)

  • Allow executor to serve with noninternvention powers

  • Allow executor to serve without posting bond.

Without a valid last will and testament:

  • The state will determine how your assets will be distributed;

  • The probate court will appoint an executor of your estate (this could come after competing petitions to gain control over your estate by family members, which may lead to acrimony);

  • A hearing is normally required for appointment of the executor;

  • The executor is required to post bond;

  • The court will appoint a guardian.

Self-Proving Will Affidavit


The person petitioning to probate your will must prove that the will satisfies the minimum requirements for a valid will in Washington state. Among other things, the will must be signed by the person making the will (testator), plus two adult, disinterested witnesses. In lieu of live courtroom testimony, the attesting witness may sign an affidavit stating he/she witnessed the testator sign the will. Without a self-proving will affidavit, the person petitioning the court to admit the testator’s will must track down the attesting witnesses to provide after-the-fact testimony regarding the will signing. This may be difficult if not impossible if one or more of the attesting witnesses has moved or died.


The self-proving will should be signed contemporaneously with the testator’s will. It will save your loved one’s from time, anxiety and expense when it comes time to prove your will.


Read here for more information self-proving will affidavits.


Trust


Many sound reasons to create a trust, one of which is to avoid probate. Although probates are relatively inexpensive in Washington state, if properly funded, a trust will allow your loved ones to avoid probate to retitle assets from you to your heirs. Other reasons to create a trust include:

  • Avoiding “ancillary probate” (probate in another state, which would normally be required if you own real estate in outside Washington);

  • Potentially significant tax benefits for certain trusts;

  • Privacy;

  • Flexibility in how your assets get distributed and managed during your life and after your death.


If trust created, it makes sense to accompany the trust with a “pour over will.” A pour-over-will transfers any of your remaining assets into your trust that have not already been transferred to the trust.


While the last will and testament only takes effect on the testator’s death, the trust takes effect immediately once it’s created. The trust creator is typically the trustee and beneficiary during his/her life.


Power of Attorney – Healthcare


A power of attorney is a legal document that delegates decision making authority to another person. The person delegating authority is the “principal”. The personal receiving the authority to act on principal’s behalf is “agent”. Healthcare powers of attorney allow a principal’s agent to make health-related decisions on behalf of the principal. This can document takes effect prior to the principal’s death. Between spouses it typically takes effect immediately. The agent’s powers may take effect upon the incapacity of the principal, in which case the powers are said to be “springing”. Powers of attorney are critical for appropriate care of elderly loved ones.


Read here for more details on healthcare powers of attorney.


HIPPA Release


The power of attorney for healthcare may not qualify as a valid authorization under HIPAA to enable the POA agent to communicate with health care providers. Even it it may technically qualify, given the strict penalties for HIPAA violations, health care provides strictly construe the same. Also, HIPPA authorizations provide access to prior medical history to enable agents to make the most informed medical decisions for the principal. Moreover, HIPAA authorizations can held the agent ensure no outstanding medical bills are lurking and/or coordinate with insurance companies as part of that process.


Read here for more details on HIPAA authorizations.


Power of Attorney – Financial


A financial power of attorney is conceptually the same as healthcare powers of attorney. The difference lies in the type of decisions the agent can make as it pertains to the principal (financially related decisions). Financial powers of attorney can be as limited or broad as the principal sets forth in the document. For example, there powers of attorney may be created to enable the agent to sign documents for a single transaction while the principal is unavailable overseas (e.g., refinance home while principal on vacation). Financial powers of attorney may be springing, and like healthcare powers of attorney, may last during the principal’s incapacity (durable powers of attorney).


Read here for more details on financial powers of attorney.


Living Will


A living will is a document that instructs medical providers how you wish to be treated in the event you digress to a very poor medical condition such as a coma. Some do not want medical providers to continue medical treatment if it only involves artificial life support without enjoyment of life. Some may wish to receive continued treatment no matter the circumstances. The living will addresses this scenario (also called advance directive).


Attorney, Chris Chicoine

www.chrischicoinelaw.com

Christopher R. Chicoine, PLLC

DISCLAIMER - THIS IS FOR INFORMATION PURPOSES ONLY; IT'S NOT LEGAL ADVICE. DON'T ACT OR REFRAIN FROM ACTING BECAUSE OF THIS. NO REPRESENTATIONS OR WARRANTIES OR ANY KIND ARE MADE. CONSULT AN ATTORNEY.





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