Joseph C. Kempe

A basic estate plan should reduce the costs associated with the inefficiencies and bureaucracy of guardianship and probate, and should preserve your available tax exemptions. Furthermore, and when appropriate, it should seek to provide an umbrella of asset and tax protection after your death for your surviving spouse, children, and grandchildren. These valuable opportunities may be forever lost if not implemented through a basic estate plan. A basic estate plan will typically consist of the following:

A Revocable Living Trust

This is a legal document which provides a means of holding title to your assets which will avoid probate of your assets when you die and avoid guardianship of those assets if you become incapacitated. For example, your assets would be titled: "John A. Smith, Trustee of the John A. Smith Trust," dated January 1, 2001. You may change the terms or revoke the trust at any time. It is a management tool which you totally control during life and while capable. You direct what happens to your assets in the event of your incapacity or death. At death, it serves as a will, but a revocable living trust does not need to be probated. As a will substitute, it should be drafted to utilize your available tax exemptions and post death planning opportunities.

A "Pour-Over" Will

This is a legal document that serves as a back-up to your revocable living trust. Upon your death, it generally will dispose of personal effects of nominal value, with all other assets passing from your revocable living trust. If you have failed to properly retitle assets to your revocable living trust, the will catches them. If valuable assets are not retitled properly and the will catches them, probate will be necessary. Therefore, the proper retitling of assets to your revocable living trust is important when undertaking the estate planning process. Proper legal advice is necessary to assure proper titling and division of your assets.

A Durable Power Of Attorney

This is a legal document which permits the management of your affairs by someone you appoint prior to a court's adjudication of your mental incapacity. It permits management without the need for guardianship, which may otherwise be required where your mental capacity is questioned.

A Health Care Proxy

Medical decisions may often not be made for you without the appointment of a guardian when you are unable to make medical decisions for yourself. Most states have passed laws which permit you to designate someone in advance, known as a "surrogate," using this legal document, so that the appointment of a guardian becomes unnecessary.

Death With Dignity Statement

This directive is commonly referred to as a "Living Will" and expresses your wishes to avoid life-prolonging medical procedures when your death is imminent or otherwise would occur naturally. It will typically express your desire to make this process as painless as medically possible.