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For couples, in most instances, upon the first to die the decedent leaves everything to the surviving spouse. Is this your desire? If not, please explain how you are considering disposing the decedent’s assets upon the death of the first spouse.

If you are an individual, or upon the death of the second spouse, the general practice we see is one in which the total assets owned are transferred to the children, typically in equal shares. Is this your desire? If not, please explain how you are considering disposing the decedent’s assets upon your death or the death of the second spouse. *

1. Will

A legal document that directs to whom your property should go after your death and who will be the guardian(s) of your dependent children. Without a will, a court will most likely have to make these decisions for you. If the assets in your will exceed $100,000 then your will must be filed in probate court (which is costly and time-consuming).

A will requires you to nominate a personal representative of your estate, who will generally implement your desires set out in your Will, pay estate bills and generally work with the lawyer chosen to assist in the process. If you have a spouse, in many instances, the surviving spouse is a good candidate to act as the nominated personal representative. Do you desire that your spouse be your personal representative? If not, or if you are an individual, please state your personal representative(s). *

We also suggest that you nominate at least one successor personal representative(s) in the event the first person(s) you nominate is(are) unable to accept that position. As such, please name at least one successor personal representative(s). *

If you have minor children, or dependent adult children, an important planning consideration is the appointment of a guardian to take care of the children if something should happen to you as legal guardian. Appointment of a husband/wife “team” (as an example, a brother and sister-in-law) as co-guardians is also appropriate. Please list those whom you wish to nominate as guardian/co-guardians.

We also suggest that you nominate at least one backup guardian/co-guardians in case the first guardian(s) is(are) unable to do so.

2. Trust

A legal document that transfer your property to a trustee who holds and manages that property for the benefit of beneficiaries. The most common trust is a revocable living trust in which the person transferring property into the trust is also the initial trustee. Property held in a trust avoids probate court.

Do you need a trust? *

If no, you can skip this section.

A trust requires you to nominate a trustee to manage the trust assets. Individuals or spouses normally name themselves as trustee or co-trustees. Is this your desire? If not, please indicate who will be the trustee(s).

We also suggest that you nominate at least one successor trustee(s) in the event the first person(s) you nominate is(are) unable to accept that position. As such, please name at least one successor trustee(s).

Distribution of Trust Property *

Upon your death (if single), or upon the death of both spouses, all of the property remaining in the trust can be distributed in one of two ways: (1) the property can be immediately distributed to the beneficiaries; or (2) the property can be placed in a trust for the beneficiaries until a future date. Option 1 is a good choice for those that have responsible, adult beneficiaries and do not want their successor trustee(s) to have to deal with the ongoing management of trust assets, such as managing real property, bank accounts, investments, and the filing of annual trust taxes. Option 2 is a good choice for those that want asset protection for their beneficiaries (i.e., if a beneficiary is ever sued, gets divorced, files bankruptcy, or is otherwise in debt, his or her creditors cannot go after his or her trust property). It is also a good choice for those that have beneficiaries of an age where they would not be able to handle money or may be subject to influence by others. IF YOU SELECT OPTION ONE, YOU DO NOT NEED TO ANSWER THE REMAINING TRUST QUESTIONS AND YOU PROCEED TO THE NEXT SECTION "POWER OF ATTORNEY"

Division of Trust

If you selected Option Two above, then you must decide when your trust property will be divided up between your beneficiaries. To answer this, it is helpful to know the three most common options regarding the division of trust property: (1) trust property is divided up immediately upon the death of both spouses and placed into separate trusts for each beneficiary. For example, if you have four children, then upon the death of both spouses, your trust would be divided up into four trusts, one for each child; or (2) trust property is never divided and remains pooled together as one single trust for all beneficiaries; or (3) trust property is pooled together initially and then divided up later. For example, the trust remains a single pooled trust for the benefit of all children until the youngest (or oldest) reaches 18, at which point the pooled trust is divided up into separate trusts for each child. Option 1 is a good choice if your children are all over the age of 18 or are not living together under the same roof. This is also a good choice if you want to ensure that your beneficiaries get exactly equal shares since, under a pooled trust, it is possible for one beneficiary to receive more than his or her share if that beneficiary’s needs are greater (for example, one child goes to a college with very high tuition or one child works in a low paying profession and needs more help with living expenses). Option 2 is a good choice if you prefer that your successor trustee manage only one trust (for better ease or simplicity) or if the purpose of the trust is to provide for the benefit of a group, i.e., for things such as annual family vacations or family reunions. Option 3 is a good choice for those that have younger children that are all living under the same roof (and thus share expenses) but eventually will move out and need their own equal source of trust income. Typically, how this works is that the pooled trust is divided into separate trust for each child when either the first child moves out or when the last child moves out (depending on whether you want the oldest child’s college tuition to be paid from the pooled trust or from his or her own separate trust).

If you just chose Option Three, then please state when you would like the pooled trust to be divided.

Termination of Trust

Lastly, if you selected Option Two under the "Distribution of Trust Property" section, then you need to decide when the trust will ultimately terminate and distribute the trust property. There are three common options regarding the timing of trust termination/distribution: (1) the trust terminates and distributes the property when the beneficiaries reach a certain age; (2) the trust distributes the property in portions, at separate times, until the last portion is distributed and the trust is terminated; (3) the trust lasts for the lifetime of the beneficiary and only terminates when trust funds are used up or upon the death of the beneficiary. Option 1 is a good choice if you want the trust to only last until your beneficiaries have reached an age where you feel they can appropriately handle money and you are not concerned about your beneficiaries’ creditors beyond that age. Typically, this type of trust is terminates and distributes trust property when a child reaches the age of anywhere from 21 to 35. Option 2 is a good choice if you would like to avoid giving your beneficiaries a large lump sum of money and would prefer that they receive their share in stages. For example, the child receives half of his or her share at age 25 and the balance at age 30; or the child receives one-third at age 25, one-third of the balance at age 30, and the remaining balance at age 35. Option 3 is a good choice if you prefer that your beneficiaries' assets be shielded from his or her creditors for his or her entire lifetime. This protects the assets in each child's separate trust from claims made by his or her spouse (including claims from a divorce) and from claims made by creditors suing the child, and would ensure that any assets remaining at the child's death would pass free of probate, state inheritance taxes, and federal estate taxes. Your child can also elect to become the trustee of his or her own trust at a certain age.

Please state the age(s) applicable to the termination of your trust. For example, if just selected Option One, then please state the age at which the trust will terminate, if you selected Option Two, then state the ages that trust property will be distributed, and if you selected Option Three, then please state the age that the child can elect to become the trustee of his or her own trust (if ever).

3. Power of Attorney

A legal document that allows you to designate an “agent” to handle financial affairs and make decisions for you if you are not mentally able to do so on your own.

Do you need a power of attorney? *

If no, you can skip this section.

A power of attorney requires you to nominate an agent to take care of your affairs. This individual will be responsible for taking care of all administrative matters, including financial needs, banking affairs and the like if you are in a comotose state or otherwise do not have the mental capacity to make these decisions. In most instances, your spouse is a good candidate to act as the nominated agent. Do you desire that your spouse be your agent? If not, or if you are an individual, please state your agent(s).

We also suggest that you nominate at least one successor agent(s) in the event the first person(s) you nominate is(are) unable to accept that position. As such, please name at least one successor agent(s).

4. Health Care Directive

A legal document that consists of a medical power of attorney and directions regarding life sustaining treatment (i.e., directions on whether to pull the plug or not if you are on life support).

Do you need a health care directive? *

If no, you can skip this section.

A health care directive requires you to nominate an agent to take care of your medical affairs. The health care agent can assist in and make decisions associated with health care. These decisions go to matters such as ordering prescriptions, handling hospital admissions, signing documents for short or long term nursing care and the like. In most instances, your spouse is a good candidate to act as the nominated agent. Do you desire that your spouse be your agent? If not, or if you are an individual, please state your agent(s).

We also suggest that you nominate at least one successor agent(s) in the event the first person(s) you nominate is(are) unable to accept that position. As such, please name at least one successor agent(s).

preliminary estate planning information

To get started on your estate plan, please fill out the applicable information in the form below.

J. Cutler Law will contact you shortly afterwards to confirm the drafting of your estate planning documents.