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Estate Planning: Documents Used

The standard estate planning documents discussed in this letter are as follows:

    1. Durable Power of Attorney for Health Care
    2. Durable Power of Attorney for Finances
    3. Living Wills
    4. Pour Over Wills
    5. Revocable Trusts
    6. Bills of Sale

The following is a brief explanation of these documents:


The Durable Powers of Attorney for Health Care normally name each of you as the primary holder of that power with a person, to be named, as the alternate. With this document you can make health care decisions for each other in the case of incapacity. Specific decisions need to be made with respect to the authorization of the removal of life support systems when you are terminally ill or in the case when you are permanently unconscious. In addition, you must make a decision with respect to the removal of artificial nutrition and hydration.


With this document, financial and other non-health care decisions can be made for you. This document can be used in the case of incapacity or in a situation where one of you is traveling and needs to transact business while you are away. Typically, we recommend that the Durable Powers of Attorney for Finances be held by our law firm because these documents are effective upon execution. If the agent named in your Durable General Power of Attorney has possession of this document, he or she would have the authority to transact business in your name. Usually, we would hold these documents until we are notified to release them by you or your physician.


As a back up to the Durable Power of Attorney for Health Care, we would normally prepare Living Wills for each of you. The Living Will is a unilateral statement by you to your health care provider that if two (2) doctors indicate there is no hope for your recovery, you request to be removed from life support systems and to die a natural death being given whatever medications are needed to keep you comfortable. In this document, you must also indicate whether you wish to authorize the removal of artificial nutrition and hydration. This document is a back up to your Durable Power of Attorney for Health Care in the situation where the individuals named in that document are no longer available to make health care decisions for you.


We generally suggest preparing separate Wills and Trusts for each of you. The Wills will be what I refer to as “pour over” Wills meaning whatever assets you have not transferred into your Trust at the time of your death and which you still retain in your individual name will be transferred at the time of your death into your respective Trust. If you fund your Trust during your lifetime with most of your assets, then your Will should have little or no impact at the time of your death. We generally draft Wills appointing each of you as the primary executor of the other's estate. Again, you must consider who you would like to appoint to act as successor executor and advise me of this choice prior to drafting of the Wills.


With respect to the Revocable Trusts, I anticipate drafting a separate Trust for each of you. You will be the grantor, trustee and beneficiary of your respective Trusts during your lifetime. Your social security number will be the taxpayer identification number for your Trust. You will continue to control your assets as you do today. No separate tax return is required for the Trust until the first one of you dies.


In general, the Bill of Sale is designed to transfer all your currently-owned tangible personal property and household effects into your Trusts, to be held and administered and disposed of pursuant to the provisions thereof. Similar property, subsequently acquired, will “pour-over” into your Trust under your will provisions.


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