Estate Planning Information

A will helps protect your assets and designates how they will be devised upon your death. However, many people have more complicated circumstances or estates that need special help. At Gerten and Van Valkenburg, PA, our attorneys will work closely with you to determine which estate planning approach best fits your situation.

Our firm has served the people of St. Paul and Minneapolis, Minnesota, since 1959. We understand the importance of building customized estate plans, and have the experience and expertise to understand the legal ramifications of your estate. We will help to build a plan that is right for you.

Contact our experienced estate planning attorneys; we are always available to help you plan your estate. If you would like to learn more about estate planning, we have provided information below for your perusal.

Estate Planning - An Overview

Estate planning gives you the opportunity to plan for your life objectives as well as provide direction about the disposition of your assets after death. An estate plan can include wills and trusts, as well as powers of attorney and healthcare directives. Estate planning follows both state and federal law; you may find that more something more extensive than a simple will is necessary for your particular situation. You may wish to set up a trusts, family limited partnerships (FLPs) and limited liability companies (LLCs).

Our dedicated and knowledgeable estate planning attorneys will ensure that your estate planning goals are understood and carried out. If you have questions about planning your estate, call us today to schedule a consultation with one of our experienced attorneys.

Basic Documents for Estate Planning

Your estate plan will help ensure that your property will go to the people you want, in the manner you choose and when you'd like. It is important for everyone, even if an estate is likely to be small, to have an estate plan. Your attorney can set up your estate plan to reduce your and your heirs' tax liabilities, court costs and attorneys fees. It may also make it easier for families to cope with the administrative and financial issues that arise after the loss of family members.

Every estate plan should have, at the very least, these two important estate planning instruments: a durable power of attorney and a will. A durable power of attorney authorizes a person to make decisions for you in the event you become incapacitated; this includes decisions about your property. A will sets out the plan to distribute your property after your death.

Your estate plan my also contain documents relating to your medical care. You may include a medical directive (also called an advance directive, a physician's directive, a written directive or a durable power of attorney for healthcare) to designate a person to make healthcare decisions in the event you are incapacitated. A healthcare proxy (also called a proxy directive) would designate someone to make your healthcare decisions regardless of your incapacity. A living will would set out your wishes regarding the use of extraordinary measures to extend your life when there is no reasonable expectation of recovery.

Estate Planning and Financial Goals

A complete estate plan can help identify and plan for financial needs during your life and for your family members after your death. You may wish to determine your possible retirement income or even replacement income following an unforeseen illness or disability. You can set out college funding needs, as well as the needs of surviving family members. Your estate plan may include making gifts to individuals and charities during life in order to fulfill these financial goals.

There are other methods to ensure the appropriate utilization of your assets during life and the orderly and efficient distribution of your assets after death, such as purchasing life insurance, using revocable and irrevocable trusts, purchasing annuities. You may wish to rearrange your personal and business interests in order to meet your goals. Your attorney will also consider federal gift tax, estate tax and state inheritance taxes implications in order to meet your financial objectives.

Our estate planning attorneys have helped our clients fulfill their goals since 1959. We are expert in asset protection strategies and will help you set up healthcare directives, powers of attorney and other estate planning devices in order to best serve your needs. If you have questions about estate planning, contact our firm to schedule a consultation with an estate planning attorney.

Asset Protection and Estate Planning

An important goal of estate planning may be protecting your income and assets from creditors' claims and tax collection. Many people think asset protection involves shady or dishonest techniques; this could not be further from the truth.

Our estate planning attorneys are experienced in the many ways to protect financial reserves, personal property, real estate and other assets for your retirement or for the use of future generations. Federal and state laws exempt certain types of property from creditors' claims, taxation or both, and our attorneys know how to use those tools, as well as others, to shield assets from future creditors and reduce or eliminate estate or income taxation. If you are interested creating a plan to protect your assets, contact our firm today to schedule a consultation with one of our attorneys.

Estate Planning Needs of the Elderly or Incapacitated

Our elder law attorneys help our clients with the legal, financial and health needs of senior citizens or those with incapacity issues. As our population's health improves, our average age continues to increase. Our clients are presented with health issues and legal concerns they had not anticipated. Our elder law attorneys prepare for our clients' long-term healthcare needs. We work through the sometimes difficult processes of applying for government programs. We are advocates for the elderly, addressing financial fraud and combating physical abuse. If the need arises, we assist with establishing guardianships and conservatorships. If you have elder law or estate planning-related legal questions, call our firm today to schedule a consultation with one of our well-informed estate planning attorneys.

Health Concerns, Medicare, Medicaid and Nursing Homes

When nursing home care is needed, our clients look to us for assistance. A nursing home stay or extended medical treatment can deplete all of the assets you've worked for during your lifetime. Medicare is of only marginal aid in these circumstances. Medicare helps cover inpatient care in hospitals and skilled nursing facilities. It does not cover long-term healthcare and extended time in a home. The only government program that will pay for long-term care is Medicaid (Medical Assistance in Minnesota). Medicaid helps low income people pay their medical bills. Medicaid will cover long-term care costs as well as certain medical costs not covered by Medicare.

Unless you have adequately planned for your healthcare needs, you run the risk of having your estate go to pay for a nursing home rather than go to your family as you had planned. Our attorneys will work with you to create an estate plan that follows Medicaid rules while distributing an elderly client's assets. This is done in a specific way, over an extended period of time in order to qualify for Medicaid. Medicaid does not allow an individual to transfer his assets immediately before entering a nursing home. Our attorneys will work with you to discuss the impact this will have on your estate.

Conservatorships

A conservator is appointed, under state law, when an individual's health deteriorates to the degree that he is unable to preside over his own concerns. The conservator has the authority to make financial decisions that the incapacitated individual can no longer make. These decisions are made under the supervision of the court. The incapacitated individual's estate pays the costs associated with the conservatorship.

A conservator may be appointed by the court; that person may not have known the incapacitated individual well enough to be aware of his objectives. Our attorneys can assist you in creating an estate plan that could be able to prevent the court from appointing a conservator. We will work with you to create an estate plan that covers these types of contingencies. We can help you by creating a durable power of attorney, where you will choose the person you trust to manage your financial matters in the event you are incapacitated. We will assist you in creating a living will / health care directive which can be used by your healthcare professionals to understand your choices about using artificial life support. You will be able to name a person you trust to make your medical and healthcare decisions when you cannot.

An estate plan can ease your mind about the future. By taking the time to work with our attorneys, you can create a plan that will let you make the decisions about your estate and your health and financial care when you are older. Contact us if you would like to discuss your options.

WILLS AND TRUSTS

Your will is the basis for you estate plan. A current, valid will allows you to make sure that your property is distributed the way you want after you are gone. Your will explains to your family and heirs, and the court, how you want your estate to be divided. A trust can be created in conjunction with a will, or independently as an estate planning tool. Both are ways to care for your family once you've gone. Our estate planning attorneys are available to help you, whether you are drafting your first will or are updating your estate plan because of a change in circumstances.

Wills

Your will is the method you use to distribute your property after you are gone. In your will, you will be able to name your family, friends, charities and others as recipients, as well as naming an executor of the estate. The executor should be aware that he has been selected, and, because he will be responsible for making sure your wishes are being followed, he should agree to this serious and time-consuming undertaking.

Your will can also name a guardian for your minor children; be sure that that person has agreed to be named guardian. He will be making the decisions you would have made for your children about their healthcare and upbringing, as well as their education.

As time goes on, your circumstances and goals will change. Your finances will change, as will your family. You will want to consult with your attorney periodically to make sure your will is up to date. Many wills do not take into account life's changes - events like marriage, divorce, and having children all drastically alter your outlook and how you want your estate divided. Your attorney will be able to update your will with an amendment [called a codicil], or you may opt to create a new will in the event there have been major changes in the way you want your estate settled. These documents are important and you want them to be executed correctly. Be sure that you consult with your attorney to ensure that they have been properly executed.

Trusts

Another method of ensuring that your estate is disposed of according to your wishes is to set up a trust. A trust holds assets for the benefit of another person or entity. That person is the beneficiary, and the person who creates the trust is known by several names, among them the settlor, creator or trustor. Our attorneys are experienced in creating trusts for our clients in order to protect their estates and have them allocated in the appropriate manner. Our attorneys work with the settlor to create the trust by transferring property or assets into the trust. Then we will work with you to establish the terms of the trust, which includes the management of the trust by the trustee. You will be able to name your beneficiaries and set out the terms and circumstances under which the trust's income and assets will be distributed.

There are many types of trusts, and depending on your wishes, our attorneys will help you in creating the trust that best suits your needs and plans. You may, as settlor, wish to create and fund during your lifetime; this is an inter vivos or living trust. You may prefer a trust that is created by a will and goes into effect when the settlor dies; this is a testamentary trust or a pourover trust. If you want a trust that cannot be terminated once it is created, you will want to set up an irrevocable trust. You may instead choose to create a trust that can be terminated by the settlor after it is created; this is a revocable trust. Be sure to discuss with your attorney which type of trust you want to create so that your wishes and goals are met.

Estate planning is tailored to each individual; everyone has his own specific needs and plans. Your circumstances will change over time, so it is important to work with your attorney to update your estate plan, including your will, so that it is as up-to-date as possible. Contact our office in order to speak to one of our knowledgeable estate planning attorneys to get your started on setting out and preserving your life's goals.

POWERS OF ATTORNEY

A power of attorney is a legal document in which the principal designates and authorizes the agent or attorney-in-fact to transact business or make certain decisions on his behalf. What this means is that when a power of attorney is effected, the agent steps into the shoes of the principal and makes decisions that are legally binding on the principal.

A power of attorney can grant broad, general authority; this is a general power of attorney. Alternately, they can limit the attorney-in-fact's power to act on behalf of the principal to particular situations; this is a special power of attorney. Our attorneys can explain to you the many different kinds of powers of attorney available. They can address a wide variety of situations and are very useful in estate planning. Our attorneys are available to assist you with this area of planning your estate.

Durable Powers of Attorney

A non-durable power of attorney will generally terminate when the principal dies or becomes incapacitated. The exception to this is the durable power of attorney; this becomes effective, or remains in effect, when the principal becomes incapacitated or mentally incompetent. This means that you can set up a durable power of attorney when you are planning your estate so that someone you trust will act as your agent or attorney-in-fact in the event that you become incompetent or incapacitated. That person will be able to manage your financial and medical affairs. A durable power of attorney however also terminates upon ones death.

Powers of Attorney for Medical Care

A power of attorney for medical care grants another person the authority to make healthcare decisions on your behalf in the event you become mentally incompetent, unconscious or otherwise incapacitated. This power of attorney is known by many other names, including a durable power of attorney for healthcare, a medical directive, an advance directive, a written directive or a physician's directive. By any name, it is a way for you to set out your plans for your medical care and have them followed through.

A health care proxy designates another person to make healthcare decisions regardless of your incapacity. This person would stand in your stead to make your medical decisions for you. This is also known as a proxy directive.

A living will is an estate planning tool legal in many jurisdictions. Even where it is not legal, it is sometimes given deference. It is a method for you to express your wishes regarding the use of extraordinary life-extending measures when there is no reasonable expectation of regaining consciousness or recovery. A living will is also known as a directive to physicians or a declaration of a desire for a natural death.

It is important that you discuss fully your medical care preferences with those you designate to make healthcare decisions on your behalf. Even if your power of attorney for healthcare, health care proxy or living will has been created, it is important for those who are making these decisions to hear it from you.

Powers of Attorney for Financial or Property Transactions

A power of attorney can also grant another person the authority to manage your finances. That person may buy or sell property, file tax returns or handle other legal transactions on your behalf. It may seem that there is a power of attorney for every eventuality, but there are decisions that may not be delegated. You cannot authorize another person to prepare your will with an attorney, vote or seek a divorce on your behalf.

A comprehensive estate plan will protect your interest during your lifetime, as well as d ensure that your wishes will be carried out after your death. Our estate planning agents are available to consult with you to determine your estate planning needs.

Estate Planning Frequently Asked Questions [FAQs]

What is a will?

A will is a written legal document that contains instructions for distributing your assets after your death. In order to be valid, your will must be formally executed. This means that it must conform to state laws in order to be legally valid and enforceable.

Can I change my will?

Your will is valid and effective until it is revoked, destroyed or invalidated by writing a new will. You can alter an existing will by revoking it in its entirety or by making a codicil; this allows for changes or additions to an existing will. A codicil modifies an existing will or even another codicil, so long as it is executed in compliance with applicable state law. Merely crossing out language within your current will or adding a new provision does not usually meet the legal requirements for executing a valid will and does not affect the terms of an existing will.

What is a conservatorship?

A conservatorship is a court procedure that will appoint someone to care for you and/or your estate if you become incapacitated. That person will be able to step in and make decisions, if his or her name is listed on your assets. In order to avoid having the court appoint someone for your, you can eliminate that need with a durable power of attorney or a healthcare power of attorney or both. By having these powers of attorney in place, costly court procedures establishing a conservatorship can be avoided.

What is a trust?

A trust is a legal entity that holds assets for the benefit of another person or entity. There exist a number of trusts that you may use to reach your estate planning objectives.

What is a living trust?

A living trust , or inter vivos trust, is a trust which becomes effective during the lifetime of the person who created the trust. The creator of the trust can change the terms of the living trust during his lifetime. A living trust can generally eliminate the need for conservatorship or probate proceedings. This is because the living trust usually contains instructions for managing trust assets during the creator's lifetime and instructions for distributing trust assets upon the creator's incapacity or after his or her death.

What is an irrevocable trust?

In an irrevocable, the creator transfers assets to a trust with no power to alter, amend or revoke the terms of the trust at a later date. This means that once the trust is created, it cannot be broken. Unless the creator retains certain powers or benefits, trust income is distributed to a trust beneficiary, who pays the taxes on that income. Any other trust income, whether it is undistributed or accumulated income, is taxed to the trust's fiduciary.

What is probate?

In order for a person's will to considered valid by the court, it must go through the court procedure of probate, or proof of will. Once a will is considered valid to the satisfaction of the court, the executor or personal representative is appointed to administer the Will terms. At the time a will is probated is the time to question such things as the construction of the will or the legal effects of the will's provisions. A person may even question the suitability of a personal representative or administrator.

What property is part of my probate estate?

Your probate estate (or probate property) includes only the property that is in your name solely and does not transfer on its own and will be subject to estate administration. Your property that you own at the time of your death or property that is acquired by your estate after your death but that passes to your heirs is included in your probate estate. Things like cars, homes and furniture, and bank accounts, as well as stocks and bonds are probate property. Property not included in your probate property would be things like life insurance policies and survivor annuities that have alternate designations of beneficiaries.