Frequently Asked Questions about Estate Planning
Got questions about getting your estate plan together? Check out this page that addresses common questions that our clients ask.
What are Connell Law’s practice areas?
Connell Law focuses on estate planning and probate for residents of Rutherford County and the surrounding area. We also serve small business owners with business formation, contracts, operating agreements, bylaws, and general consulting. Other legal matters may be taken on a case-by-case basis. Connell Law currently does not provide representation on matters dealing with intellectual property or litigation in federal court.
For more information on our specific offerings, please visit our Services pages: Last Will & Testament, Revocable Living Trusts, Power of Attorney, Living Wills, Probate & Estate Administration, and Small Business Legal Matters.
Who needs an estate plan?
It’s for everyone, and it involves more than just a will or trust. If you are an adult with even just a few assets, it is important to have your bases covered. Estate plans aren’t just for those with large estates. It’s for anyone who owns property, whether real estate, tangible personal property, and other types of property interests.
Even if you don’t yet have a “large estate,” it is important to plan for situations where you may be unable to make decisions on your own behalf, and someone else must make decisions for you. By having a comprehensive plan in place, you ensure that your wishes will be honored. That means having a conversation with a professional estate planner to draft what you need. Book a free consultation!
Is a handwritten Will legal?
A handwritten, or holographic, Will is one which is entirely in the maker’s handwriting. If it meets the other requirements for a Will, a holographic will can be valid in Tennessee. But these types of Wills are a fruitful source of litigation, usually because they are written by someone who does not have legal training.
These documents are also commonly in unknown places, creating potential problems for the proper distribution of the estate. As was the case with the Jurassic Park scientists, just because we can do something doesn’t mean we should. Aretha Franklin’s beneficiaries learned this the hard way.
Should my Will be any particular length?
Your Will technically does not need to be any longer than one page. Indeed, any lawyer could turn out a “one-pager” for a relatively small fee. But the problem is that such a Will is unlikely to accomplish your objectives. It is preferable for Wills to have provisions that can account for a variety of situations that may arise. The alternative is to hope that, by coincidence, the Will fits the circumstances at your death.
Accordingly, a Will can sometimes be a lengthy instrument. This may seem burdensome at first glance. But it can be a blessing to your family when they later find that you anticipated and planned for what might have otherwise been serious problems.
Can Connell Law review a Will I prepared for myself online or with AI programs?
No. While well-intentioned, this is more work than having our office prepare your estate plan from scratch. With these online programs, and especially with artificial intelligence, the content is often not specifically tailored to your situation, or even to state law.
We would need to comb through each word of these documents, which would take far more time and be more expensive than using the our internal forms and customizing as needed. While we appreciate the desire to be economical, we cannot cut corners with these matters.
What property does my Will not cover?
Retirement accounts and life insurance death benefits pass in accordance with the Beneficiary Designations. These are not affected by your Will. In addition, property held as joint tenants with right of survivorship accounts (e.g., joint bank or investment accounts with a right of survivorship) will pass to the surviving account holder and not by the terms of your Will.
Additionally, real estate held jointly with rights of survivorship will also pass by operation of law to the other owners of the property. With this in mind, you should review your beneficiary designations, account agreements, and property deeds to make sure they are consistent with your Will.
What is a Personal Representative?
Your personal representative is the person who will serve as the primary representative of your estate. You may be more familiar with the terms “executor” or “administrator.” An executor is someone who is appointed to handle your estate if you have Will. An administrator is a person appointed by the court to handle a person’s estate when he or she dies without a will (intestate).
What is a Trustee?
A Trustee is one to whom property is transferred for the benefit of someone else (the Beneficiary). Trusts are a frequently misunderstood estate planning vehicle. A Trust can be designed to produce almost any result you desire, as long as you fund the Trust with sufficient assets and draft the instrument to accomplish those objectives.
Trustees should have broad and adaptable powers to provide flexibility for future events. The Trustee should be empowered to do what is best for the Beneficiary(ies) without inappropriate and cumbersome restrictions.
If a Trust is suitable for your estate plan, it is important to select the Trustee carefully. You should consider giving someone, such as a committee or a trust protector, the power to change Trustees, as well. This could eliminate the need to go to court to have a Trustee removed if there are problems with that Trustee’s performance.
What is a Revocable Living Trust?
A Revocable Living Trust is a trust that a person establishes during his or her lifetime (the “Settlor”). it may be for the Settlor’s own benefit and for the benefit of others. While the Trust can benefit the Settlor during his or her own lifetime, he or she cannot be the only Beneficiary (i.e., there must be Future Beneficiaries who will receive what is in the Trust after the Settlor passes away).
The Trust may be funded either during the Settlor’s lifetime or at the Settlor’s death. Revocable Living Trusts are appropriate in the following circumstances:
- You own real estate in another state;
- You want your estate to be kept private;
- You have minor children;
- There is a significant chance of a Will contest;
- You are a small business owner with employees;
- You wish to avoid probate.
Who will raise my minor children if I die?
A surviving parent will generally have legal custody of your children if you pass away before they reach the age of majority. But if there is no surviving parent, this is an important selection to make in your Will. If you fail to do so, the court will make the choice for you.
Clients sometimes chose one of their parents as the Guardian in the event of both parents’ deaths. But if your parents are elderly, in poor health, or are otherwise not the best pick, consider looking to contemporaries in your families. If no family member is available or appropriate, then consider close friends with children in the same age range as yours. Also consider this person’s values and ensure that your children will be raised with the values you want them to have as adults.
In any case, speak with the proposed Guardian to ensure that he or she is agreeable to taking on this responsibility. If you have planned your estate properly, the Guardian should not experience financial strain in raising your children. We often suggest that, upon the death of you and your spouse, a Trust be established for minor children. The Trustee can be authorized to make distributions to assist the Guardian and even provide funds to pay for any necessary expansion of the Guardian’s home or transition to a larger one.
How frequently should I review my estate plan?
As a general rule, it is a good practice to review your plans every few years. As you get older, reviews should become more frequent. We recommend:
- Under age 50: every 5 years
- Age 50-60: every 3 years
- Age 60-70: every 2 years
- Age 70+: every year
This will help you ensure your plan still reflects your desires and help to catch any information that needs updating. It is also advisable to review your estate plan if you experience significant change in your finances or family situation.
For example, a substantial increase in your net worth (through inheritance, gifts, successful investments, life insurance, etc.) may call for further family estate and financial planning. If you did not have children when you first made your estate plan and are now expecting a child, checking your documents will ensure the child’s needs are taken care of in the event of unexpected loss. And divorce necessarily reopens the matter of planning for your estate.
What is a Power of Attorney?
A Power of Attorney is a written document through which one person, the Principal, appoints another to make financial decisions in their place. This is also sometimes referred to as a Power of Attorney for Property. This instrument gives your agent authority to perform specified acts regarding financial matters on your behalf. The person holding a power of attorney is known as an “Attorney-in-Fact” or “Agent.”
Powers of Attorney typically are drafted as being “durable.” Durability causes the Agent’s power to survive incapacity. That’s generally when it will most be needed. The instrument should express clearly if the power is durable or not. The power may also become effective at a certain point in the future based on specified criteria (a “springing” power).
In light of the authority given through a Power of Attorney, your Agent must be someone you fully trust. Spouses usually name each other as their primary Agent and a trusted family member or close friend as an Alternate. Single persons often choose close friends or family members.
What is a Living Will?
A Living Will is a document that provides instructions to your healthcare providers regarding life sustaining procedures in the event you have a terminal illness or are in a permanent vegetative state. It also allows you to specify the types of treatment, like artificial hydration and nutrition, that you want provided or withheld.
The Living Will helps your loved ones by making the decision ahead of time regarding life-sustaining care. This document is frequently one of the most difficult for clients to think about. Speak with your closest confidants and family members about what will best reflect your wishes and values.
It is highly advisable to share a copy of your Living Will with your Healthcare Agents. It is also wise to give a copy to your primary care physician and other providers you regularly visit.
What is a Healthcare Power of Attorney?
A Healthcare Power of Attorney is a written instrument by which you appoint another as your Agent to make healthcare decisions if you are incapable of doing so or are incapable of communicating with your providers.
The person you name may, but is not required to be, the same person who holds a Power of Attorney for Property. The powers given for your Healthcare Power of Attorney will differ significantly than in a Power of Attorney for Property. This instrument will cover aspects of your healthcare and will not grant powers to handle financial matters.
Your Healthcare Power of Attorney should not contradict your Living Will. Upon executing this document and your Living Will, it is wise to provide a copy of each instrument to your primary care physician and any healthcare provider you routinely see for care.
What do I get from a consultation?
You will walk away from your initial consultation with a personalized, step-by-step plan for your specific objectives. From there, Connell Law, PLLC will be there for you every step of the way to make sure the plan is properly executed.
Specific estate or business questions? Check out our Resources or Contact Us!