Wills, Trusts and Estate Planning

Planning for the end of your life is a critical element of manifesting your love for others. Most of us, including me, know that we will not live forever and yet taking the time to consider and then set forth what we want done seems to remain on the back burner. Typically, the death of a family member or friend, a medical emergency or some near death experience is needed to jar us into action. This should not be, particularly since the process for most of us is pretty simple and therefore relatively inexpensive. Failure to address your end of life issues, on the other hand, can be quite expensive financially and, unfortunately, often results in bitter divisions within families rather than the love and unity that are so needed in such times. At Atherton Law we understand this and are committed to spending the time necessary to get to know your family’s special needs and your personal desires so that we can apply our knowledge of the law to help you choose the right instrument(s) (i.e. wills or trusts) to accomplish your desires.

Most people think of estate planning as something that only elderly people do, but if you are married, have children, own a home, have a 401K or other retirement or pension plan or otherwise have any assets of value then you need an estate plan. Moreover, if you are getting married for a second time, have an heir with special needs (i.e. minors, disabled persons, or persons with special educational or medical needs), have become a grandparent, recently retired or became a widow(er) then you probably need to update your estate plan.

For most of you, your estate plan will include one or more of the following documents, briefly explained below.

• Will.
  A will is a revocable instrument (in other words it is a document that you can change at any time) by which a person makes disposition of his or her property, to take effect after his death. All assets disposed of by will are administered by the Probate court in Vermont.

• Trust.
  A trust is a legal entity created by a grantor or settlor and managed by a trustee having a fiduciary duty to administer the trust assets and income for the benefit of designated beneficiaries. Trusts can serve a myriad of purposes, but insofar as estate planning is concerned they are frequently used to avoid probate, care for minors or others who may not be capable of managing finances well, preserve assets for the children of a first marriage when one marries a second time, minimize estate taxes or provide for the supplemental needs of an individual who may be receiving Medicaid, Social Security Income (SSI) or some other needs based government benefit.

• Durable Power of Attorney.
  This is a financial document that you execute to empower someone that you trust to execute documents, pay bills, deposit and withdraw funds from your accounts in your stead. What makes it “durable” is the fact that the person to whom you delegate authority can continue to operate on your behalf even if you become incapacitated, temporarily or permanently. It can be general, essentially giving a person power to operate as your “alter ego” or it can be limited, giving a person power to handle a particular transaction (i.e. the sale of property) or bank account (i.e. a personal checking account). It can also be limited to a specified period of time. In any case, such a document is frequently executed in connection with an overall plan for administering your estate before your death.

• Advanced Directives for Medical Care.
  Under Vermont law, an advance directive for medical care is the instrument typically used to set forth your terminal care instructions (akin to the former Living Will) and to appoint a health care agent (akin to the former durable power of attorney for health care). As the Terry Schiavo case highlighted, these documents are needed by all, regardless of age. Thankfully, they are largely form driven and therefore inexpensive to prepare and execute.

• Guardianships.
  A guardianship is frequently created by will to identify who you want to care for your children upon your death, but they can also be established to care for others who may be physically or mentally impaired on a temporary or permanent basis.

Estate planning is a inter-disciplinary area frequently requiring your counsel to work with your insurance agent, financial planner, accountant and others. Mr. Atherton is a team player who works well with others and is the first to recommend that his clients retain the necessary experts should an issues fall outside his personal knowledge and/or experience.