Frequently Asked Questions

What is Estate Planning?
What is a will?
Should I make a will?
What is a trust?
What is Probate?
What is a Guardian?
What is a Personal Representative?
What is Power of Attorney?
What is a Durable Power of Attorney?
What are Advanced Care Directives?

What is Estate Planning?

Estate Planning is a process involving the counsel of professional advisors who are familiar with your goals and concerns, your assets and how they are owned, and your family structure. It can involve the services of a variety of professionals, including your lawyer, accountant, financial planner, life insurance advisor, banker and broker. Estate planning covers the transfer of property at death as well as a variety of other personal matters and may or may not involve tax planning. The core document most often associated with this process is your

What is a will?

A will is a legal document. It allows you to choose who receives your belongings and assets after you die. A will can also be used to appoint a guardian to look after children until they can look after themselves.

Apart from these obvious advantages, a will can save the expense and possible squabbles that may arise when a person dies without a will.


Should I make a will?

Everyone should have a will. A will is the only way you can tell others how you want your assets to be distributed after your death. It is the only way you can provide for people who may depend on you financially, e.g. children.

Of course it’s always easy to put it off. Robert Holmes-a-Court didn’t have a will when he died. He’d had one prepared, but he spent months carrying it around in his briefcase and didn’t get round to signing it. Fortunately for his wife, his children were prepared to not claim their substantial entitlements under intestacy rules.

What is a Trust?

Even if you only own a few assets, it’s worth making a will so that you can ensure what happens to those assets after you die. If you don’t have a will, your assets will be distributed according to intestacy rules. These rules apply to everyone and do not take account of your individual circumstances or what you may have wanted.
A will also allows you to choose a person to manage the distribution of your assets. This person is called an executor. If you don’t have a will, your assets are distributed by a court-appointed person called an administrator.
A Trust is defined as any arrangement where property is to be held and administered by a trustee for the benefit of those for whom the trust was created. Depending on the type and how it is established, a trust may be revocable (changeable) or irrevocable (not changeable).

Summary of Trust Purposes

A trust can include many different provisions to accommodate one or more of these objectives,
among others:

  • Provide a structured way to administer your personal and financial affairs during your life, especially if you become incapacitated.
  • Carry out your choice of trustees and successor trustees to administer your trust.
  • Provide a protected way to administer your assets for a surviving spouse, and in a tax-advantaged manner and to protect the assets upon a remarriage.
  • Ensure the orderly and private transfer of your property after your death, and after the death or your surviving spouse.
  • Protect and manage assets for the benefit of, and provide support for, your children, grandchildren, and other beneficiaries until they reach the ages or meet conditions that you determine for distribution.
  • Create incentives for desirable behavior and accomplishments by your beneficiaries—or disincentives for undesirable behavior.
  • Ensure the transfer of property in a way that takes advantage of the available federal and state tax exemptions.
  • Provide for the support of an elderly surviving spouse, parent, disabled child, or other person with protection from Medicaid disqualification or reimbursement.
  • Pay for a loved one’s education.
  • Pay for a loved one’s health and medical care.
  • Avoid probate costs and inconvenience.
  • Make tax-advantaged gifts to children or others.
  • Make tax-advantaged generation-skipping gifts to grandchildren.
  • Protect assets from a beneficiary’s creditor’s claims or from a divorcing spouse of a beneficiary.
  • Protect assets from claims of a beneficiary’s present, former, or future spouse, including in a divorce.
  • Minimize the risk of competition or disagreement among beneficiaries over financial matters.
  • Arrange for the cooperative sharing of family assets such as a residence or vacation home.
  • Determine the method for decisions regarding stock options and other unusual assets, such as in a family business.
  • Make tax-advantaged charitable gifts.
  • Arrange for the management and distribution of retirement plans and life insurance proceeds.
  • Provide for the continuation of alimony, property division, or child support payments, if necessary, but no more than is legally required.
  • Arrange for the management or sale of a family business or save a family business from an untimely liquidation or disadvantageous sale.
  • Reduce your gift tax, estate tax, generation-skipping tax, and income tax.

What is Probate?

One can modify the terms of a revocable living trust, change beneficiaries, or terminate the trust as one’s goals change. One can draft the trust to cease and pay out immediately following death or to have it continue into the future for one’s beneficiaries. The flexibility of a trust makes it ideal for a wide range of individuals and purposes when a will alone cannot accomplish the client’s goals.

What is a Guardian?

Probate is the legal process of proving a will, appointing an executor, and settling an estate; but by custom, it has come to be understood as the legal process whereby a dead person’s estate is administered and distributed.

What is a Personal Representative?

The Guardian is the person who is appointed by the Court to care for the person and/or estate of a minor child or incompetent person. One can nominate a guardian in a will, and though normally the court will honor that nomination, the Court has the right to agree or disagree.

What is Power of Attorney?

A Personal Representative is the person or institution named in a person’s will who carries out the terms of the will.


What is Durable Power of Attorney?

A written document that authorizes a particular person to perform certain acts on behalf of the one signing the document. The document, which must be witnessed by a notary public or some other public officer, may bestow either full power of attorney or limited power of attorney. It becomes void upon the death of the signer.

What are Advanced Care Directives?

A legal document that you can use to give someone permission to make medical decisions for you if you are unable to make those decisions yourself. The person you name to represent you may be called an agent, attorney-in-fact, health care proxy, patient advocate, or something similar, depending on where you live.

Advanced care directives are specific instructions, prepared in advance, that are intended to direct a person’s medical care if he or she becomes unable to do so in the future.


Examples of Advanced Care Directives

Verbal instructions. These are any decisions regarding care that are communicated verbally by an individual to health care providers and family members.

Organ donation. This may be accomplished by completing an organ donation card and carrying it in your wallet. A second card may be placed with important papers (such as a living will, insurance papers, and so on). Most hospitals or other major health care centers have organ donor information available.

Many states offer people who are applying for new or renewed driver’s license the opportunity to make a decision regarding organ donation and have it recorded on the driver’s license. More information may be obtained by calling 1-800-24-DONOR.

Living will. This is a written, legal document that conveys the wishes of a person in the event of terminal illness. This document can speak for a patient who is unable to communicate. A living will may indicate specific care or treatment the person does or does not want performed under specific circumstances. This may include specific procedures, care, or treatments such as the following:

  • CPR (if cardiac or respiratory arrest occurs)
  • Artificial nutrition through intravenous or tube feedings
  • Prolonged maintenance on a respirator (if unable to breathe adequately alone)
  • Blood cultures, spinal fluid evaluations, and other diagnostic tests
  • Blood transfusions

State laws vary regarding living wills. Information specific to individual states usually may be obtained from the State Bar Association, State Medical Association, State Nursing Association, and most hospitals or medical centers.

A living will is not to be confused with a last will and testament that distributes assets after a person’s death.

Special medical power of attorney. A legal document that allows an individual to appoint someone else (proxy) to make medical or health care decisions, in the event the individual becomes unable to make or communicate such decisions personally. A special form for this has been published by The State of Wisconsin and should be utilized.

NOTE: This document provides for power to make medically related decisions only and does not give any individual power to make legal or financial decisions.

DNR (do not resuscitate) order. This states that CPR (cardio pulmonary resuscitation) is not to be performed if your breathing stops or your heart stops beating. The order may be written by the person’s doctor after discussing the issue with the person (if possible), the proxy, or family