A Different Kind of Holiday Checklist: Essential Estate Planning Documents

The holidays are a time to reminisce, celebrate the many joys of the season, and spend time with your loved ones. If you are like me, you plan months in advance for the season. Lists are made and checked twice. Amid all that planning, one list rarely gets the attention it deserves: the estate plan.

While the idea of estate planning is not festive, having these important conversations at the end of the year can reduce stress, prevent conflict, and gift a sense of security to the ones left behind.

Estate Planning Must Haves

This document (oftentimes referred to as a “POA”) allows a trusted person, your “agent,” to handle all business and financial decisions on your behalf. The agent is held to a fiduciary standard to make decisions as you would have wanted. Actions such as tax filings, real estate transactions, legal matters, and banking needs can all be covered under this document.

Having a POA in place can help avoid a costly court-ordered conservatorship in the event you become incapacitated and unable to handle your own affairs.

Tip: Even if you know your child would step up and handle your affairs, institutions will require a valid POA before giving them access or letting them sign documents on your behalf. Don’t wait until incapacity to think through this necessary step!

Think of the advance medical directive (known as an “AMD”) as the medical counterpart to your power of attorney. This specific document captures your wishes for terminal and end of life care, while also naming an “agent” to act on your behalf and make decisions regarding things like pain control, organ donation, and where you prefer to receive care.

Tip: Most of us already have ideas about our medical care and who we want to assist in those decisions if necessary. Don’t assume your children or family members will automatically know your wishes. Write them down to make your intentions clear (your medical providers will appreciate your planning, too!).

In Virginia, it is crucial to have a Last Will and Testament (“will”) to set out your intentions and to ensure your assets are distributed according to you and not the Court.  Your will names an “Executor” to carry out your wishes, distribute your assets, and provide for the payment of expenses and debts.

This document decides who inherits your assets (think your real property and your tangibles). Other assets such as bank accounts and investments will pass according to your beneficiary and payable on death designations if they are in place.

For families with minor children, a will is the most important document as it allows you to name a guardian in the event something happens to you. Without your choice of guardian named in your will, you risk leaving that most important decision up to a judge not familiar with your circumstances.

Tip: For your home and land in Virginia, it is worth looking into a “Transfer on Death Deed,” which enables you to pass real property to your heirs without the hassle of probate proceedings.

This estate tool can be very beneficial for ensuring your affairs are managed outside of the probate process, maintaining a level of confidentiality to your wishes, and protecting assets for minor children and generations to come. Trusts do not have to be the most complex document, but rather a way to organize the ownership of your businesses, your property, and your assets, especially in the case of minor children or special needs family members. They are also great tools to manage your affairs in the event of incapacity.

Tip: A revocable living trust can save your loved ones time because assets held in the trust can be distributed immediately after your death, without going through the probate process. This helps your family avoid lengthy court procedures and get access to property and funds much sooner.

Wrapping Up the Year

Even if your estate documents have been sitting safely in a drawer for years, the close of the year presents the perfect opportunity to revisit them so your plan keeps pace with your life, not your past.

• Have your circumstances changed?
• Did someone new join the family?
• Did you buy land?
• Have there been changes to the law that could impact you?

By reviewing your plan, you can package your wishes up with a tidy bow for your family and check a much-needed item off your list.

No one likes to have hard conversations, especially those that revolve around incapacity or absence, but there is real peace in capturing your wishes and protecting the ones you love most. Wishing you and yours a holiday season full of peace, joy, and . . . a little planning too.

If you have any questions, please contact one of our Trusts and Estates Attorneys.

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