Common Estate Planning Documents
Last Will or Testament – A legal document which states your final wishes. It is used to provide instructions after you die with regard the distribution of property subject to probate (as opposed to property that is automatically transferred on death such a assets with designated beneficiaries, POD accounts, joint accounts, etc.). Among other things, it can also be used to designate guardians for children provide for pets or to nominate a trustee for assets to be held in trust for minor children.
Trust – In short, it is a legal relationship whereby property (real or personal, tangible or intangible) is held by one party (the “trustee”) for the benefit of another. While there are many different types of trusts, a revocable trust is the most commonly used trust. A revocable trust allows for management of your assets for your benefit during your lifetime. At your death it provides for the distribution of your remaining trust assets to the beneficiaries you designate, without a probate court proceeding.
Durable Power of Attorney – A written authorization given by one person (the “principal”) to another person (the“attorney-in-fact”) to represent or act on the principal’s behalf in private affairs, business, or some other legal matter that remains in effect even if the principal becomes incapacitated.
Mental Health Care Power of Attorney – A designation of an agent to make decisions concerning mental health care for the principal in the event a licensed psychiatrist or psychologist determines the principal is incapable of giving informed consent. This document also provides instruction for decisions the agent will need to make so that your wishes will be followed.
Health Care Power of Attorney – A particular affidavit which gives the attorney-in-fact the authority to make health-care decisions for the principal, up to and including terminating care and life support.
Living Will – A document that provides the principal’s specific directives about the course of treatment to be followed by health care providers and care-givers.
A living will can forbid the use of various types of burdensome medical treatment and can also be used to express wishes about providing, or withholding, food and water, if supplied via tubes or other medical devices.
Deed – A document used to transfer the legal ownership of land and whatever is on the land to another person.
Deed of Trust – A document used to transfer the legal ownership of land to independent trustees to be held until a debt on the land is paid off.
Beneficiary Deed – A deed that transfers an interest in real property, including any debt secured by a lien on the property, to a beneficiary designated by the owner that expressly states the deed is effective on the death of the owner.
Quitclaim Deed – A deed that passes on to the buyer all the rights, or as much of a title, the seller holds.
Not everyone may need a living trust, an elaborate estate plan, or even a will. But, if you don’t want the State of Arizona deciding who will receive your assets, or if you don’t want a stranger making your important decisions, you should consider getting the three basic document types that most adults should have:
Last Will & Testament
Powers of Attorney
1. Last Will & Testament – If you want to choose how your assets will be distributed after your death, you should have a will or a trust. If you don’t, the State of Arizona has a basic plan in place for probating the estates of people who die without a will, which is set forth in the laws of Arizona – the Arizona Revised Statutes – that deal with “intestate succession”. If you have a will or trust, at the time of your death, you can choose who will be in charge and who gets what from your estate. Also, if you have children who are minors at the time of your death, you can select who will take care of them and put their inheritance into a protected trust. This is important if both parents die together. In general, it’s a good idea for you to make a will, or create a trust, to address these contingencies. We analyze your needs during our first consultation.
2. Powers of Attorney – An entirely different situation occurs when, instead of dying, you become incapacitated and are unable to make or communicate decisions about yourself due to illness or injury. In this case, the following issues are among those that will arise:
- Who will have authority to make arrangements with medical facilities about your care?
- Who will be able to deal with insurance companies on your behalf?
- Who will have authority to pay your bills?
- Who will be able to see your medical records and talk to your doctors about your care?
If you do not make arrangements for these contingencies, once your situation is brought to light, the State of Arizona will eventually designate someone to fill these roles. Bear in mind, however, that this could involve an expensive and drawn-out court proceeding. In addition, the person who is eventually appointed by the court to perform these tasks for you may not be the person you would have chosen. Unless you have valid powers of attorney in force at the time when you are most helpless and vulnerable, life-changing decisions could be made for you by a complete stranger or an estranged (or greedy!) relative.
3. Living Will – What if you have been diagnosed with a terminal illness and you are unable to communicate your wishes with regard to end-of-life medical care and treatment? A living will is used to tell your doctors exactly what kind of care you do want to receive and what kind of care you don’t want to receive in the event you are incapacitated and terminally ill. There are many good reasons to utilize a living will to express your wishes about end-of-life medical care. For instance:
(1) You might be too sick to express yourself when the time comes.
(2) Your loved ones might disagree about what to do, which puts your doctors in a difficult position and makes them more likely to keep you on life support, despite your desire not to have that happen. Living wills often include legal protection for doctors and hospitals so they won’t be sued for honoring your request.
(3) Your living will can help your family with the really tough ultimate decision of whether or not to take you off life support – because you would have already expressed your desires.
Under the right circumstances, these documents may be crucial to you, particularly in the event you become incapacitated and cannot speak or act on your own behalf. Once you have created these documents, you should review them at least once a year to ensure that you are still comfortable with the decisions you’ve made. If you later have second thoughts, you can change these documents, as long as you are competent to do so. The main thing is to get them done before you need them — or the court system may be forced to make these crucial decisions for you. We can help. Call (480) 409-9265 or click here to contact us.