Essential Elements of an Estate Plan

By Kathryn Cockrill   •   The Law Office of Kathryn M. Cockrill, LLC

When it comes to estate planning, it is important to have a conclusive plan that directs who will be in charge, how your estate will be managed, and a clear statement of your final wishes. Most often people associate estate planning with a Last Will and Testament, however, it is just as important to have proper directives in place should you become incapacitated during your lifetime. There are four essential documents:

Last Will and Testament

A Last Will and Testament is a legal instrument that directs how your property will be distributed at the time of your death. The Will nominates an individual or institution to act as a Personal Representative who will administer the probate by representing your estate and carrying out your wishes.

The Will directs the distribution of property left in your name. Not all property is subject to probate and distributed in accordance with the term of your Will. Probate property only includes assets that are in your own individual name. Many types of property pass outside of probate (jointly held, property in trust, life insurance, retirement accounts).

Often included in a Will is a testamentary trust that will protect an inheritance for minor children, incapacitated, irresponsible or vulnerable adults. The Trust will name a Trustee to manage the trust assets and direct how assets are distributed. If you pass away leaving minor children and you do not have a trust set up for inherited property, the Court will intervene and require a conservatorship to be established for the minor child. This can be costly, and the Court will require annual accountings, petitions for approval of expenditures.

General Durable Power of Attorney

A General Durable Power of Attorney gives financial and legal authority to the agent of your choice in the event of your incapacity. A General Durable Power of Attorney is a substitute for a court-appointed conservatorship, an expensive and time-consuming proceeding at probate court.

Generally speaking, a General Durable Power of Attorney allows an agent to stand in your shoes to make financial decisions for you should you become incapacitated. You can authorize your agent to do almost anything that you can do yourself. Typically, your agent has a broad list of powers that allow your agent to manage your estate.

Living Will

A Living Will (“Dying Declaration”) addresses whether nutrition and hydration can be withdrawn or withheld in two limited circumstances:  1) a terminal condition and you are likely to die in a short time period; 2) being in a persistent vegetative state.

Health Care Power of Attorney

A Health Care Power of Attorney gives the agent of your choice the ability to make health care decisions for you at any time you are unable to make those decisions yourself, or when you are unable to communicate a willing and knowing health care decision. The Health Care Power of Attorney allows you to direct whether or not your agent has the authority to donate your organs, consent to life-sustaining treatment, and tube feeding.

Kathryn Cockrill is the Owner and Attorney at The Law Office of Kathryn M. Cockrill, LLC

This article was featured in the November 2021 issue of Carolina Bay Neighbors magazine.


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