The New Year is Here: Do You Have the Essential Estate Planning Documents in Place?

Essential Estate Planning Documents

Below is a list and brief overview of the documents most commonly identified as the “essential” estate planning documents.  Please keep in mind that everyone’s situation is unique and therefore not all estate planning needs are the same.  Consulting with an experienced estate planning attorney can help you determine which documents you need, if any.  

Will – In Maryland, if you do not have a will in place, by default, Maryland makes one for you. 

  • If  you are single without children, your parents are entitled to your estate or your “probate assets.”  Probate assets are those assets owned in your name alone without a designated beneficiary or joint titling.
  • If you are married without children, but with at least one surviving parent, your spouse is entitled to the first $15,000 plus one-half the remainder of the estate and your parent or parents are entitled to the other one-half.
  • If you are married with minor children, but with at least one surviving parent, your spouse is entitled to one-half of the estate.
  • If you are married with children over the age of majority, your spouse is entitled to the first $15,000 plus one-half the remainder of the estate and your adult children are entitled to the other one-half.
  • If you do not want the will provided by Maryland for you, you should consult a Maryland estate planning attorney and have an estate plan created for you that meets your needs and wishes.

Power of Attorney – A properly drafted Power of Attorney can, in some instances, be more important than a will.  A Power of Attorney allows for loved ones to take over your financial affairs, in the event you become mentally incapacitated.  Without a Power of Attorney a loved one must go to court to have a guardianship imposed, at great expense, formality and frustration.  In recent years, Maryland has made it easier to ensure an agent’s power under a Power of Attorney will not be refused arbitrarily – if drafted properly.  Therefore it is critical to have an experienced estate planning attorney draft your Power of Attorney.  In addition, there are General Power of Attorneys and Limited Power of Attorneys.  An estate planning attorney can tell you which one meets your specific needs.

Advance Directive and Health Care Agent – An Advance Directive and Appointment of Healthcare Agent informs your health care provider as to your wishes regarding your care if you are unable to communicate decisions in that regard, and names a person to communicate them for you and act on your behalf. 

  • Health Care Agent – Unlike a general power of attorney, your Health Care Agent’s authority rests with your health care, not business or personal affairs or finance.  You should name a Health Care Agent you trust, but you may name anyone to serve in that capacity.  Domestic Partners may serve as Health Care Agents and have the same “high priority” status as a spouse for health care decision making under Maryland law.
  • Advance Directive – Advance Directive deals with the kind of health care treatment you may wish to have.  It may address such areas as the use of life support, do not revive or resuscitate orders, the use of feeding tubes, and “comfort care” or the use of medication to alleviate pain even though that may shorten your life.  All of these matters should be discussed with those close to you and put in a legal Advance Directive document to ensure your wishes are met.

Designating a Guardian – If you have children, it is important to consider, who you would designate as your child’s guardian, in the event of your death.  This allows you to select who you would like to take care of your children in the event of your death, rather than having a stranger make that decision for you.  If a guardian is not designated, costly, frustrating, and in the event more than one individual is seeking custody of your children, possibly adversarial court proceedings, must be undertaken to establish guardianship of your children. 

Trusts – If you have children, it is important to also consider establishing Trusts for your children.  In the event of your death, estate assets that are designated to your children can be placed in the Trust and a designated Trustee can ensure the money in the Trust is properly used to care for your children until they are mature enough to properly manage the funds for themselves.

Regardless of whether you are single, married, a parent, wealthy or not, every adult should consider consulting an estate planning attorney to determine which estate planning documents they need, and if they have the documents in place, whether their documents are up-to-date and properly drafted.