Estate planning is an analytic exercise that starts with a review of your assets, family situation, business, and liability exposure. Everyone needs estate planning and it does not have to be complex. Estate planning is a process that has an end result – you are left with a set of structures, which are documents in written form, which will either come to effect immediately (lifetime planning) or will come to effect when you pass away (testamentary planning)or become incapacitated (disability/incapacity planning). The written form can be as easy as a Will, health care proxy, power of attorney, living will and designation of agent to control disposition of remains. It can be as complex as having several trusts, family partnerships, charitable trusts, grantor retained annuity trusts, partnership freezes and/or LLCs.
What is Will:
A Will is a document that memorializes your testamentary wishes (i.e. wishes expressed through a Will to come to effect at death not during lifetime). It does not have to be complex but it has to clearly express your desires, it has to be executed according to the requirements of the state law (for example, in New York a Will has to be witnessed by no less than two witnesses and the testator has to proclaim such document as his or her Will in the presence of said witnesses).
The Will has to appoint an executor. An executor is a person who takes care of your estate when you are gone. A good Will appoints successor executor in addition to a primary executor, and also addresses a situation of what happened if no executor nominated in the Will can act as such executor. Be aware of the state requirements for who can act as executor. For example, in New York, a convicted felon cannot serve as executor.
The Will has to cover various contingencies to be a functioning document. This means that it needs to address issues like predeceased beneficiaries and fiduciaries (executors/trustees/guardians). Theoretically, unless you want to take someone out of your Will or add someone new to your Will, a Will should not be changed when someone dies because it would have addressed such possibility right at the start of drafting. For example, if you want o leave a bequest (a gift in the Will) to your sister, an attorney drafting this Will should immediately ask whether the gift will go to your sister’s children or spouse if she were to die before you. Therefore, if your sister dies while you are still living, the Will does not have to be changed (unless your change your mind as to who should get her gift ).