Estate Planning FAQ

"You don't want to leave a lot of surprises for your family.  Inspiring clients to consider all factors when making plans is important to me; I ease them through topics that many people do not want to discuss.  I let them see that it is not difficult to create an excellent state plan.  Read the information below, fillout the Will Questionnaire to put all of your information together and call for an appointment to meet with me."

Do I need a will?

Absolutely.

If you have children you should have a Last Will and Testament so that a Guardian and Trustee of your choice can be appointed for your children until they are adults if both parents have passed away. I believe that to most families, children are the biggest assets to be considered.  If you own any financial assets in your sole name, your estate will go to probate.  Some people believe that to avoid probate, it is best to place all assets in joint names.  However, that may not be the best practice for a number of reasons.

A Will is essential to simplify and shorten the probate process and save complicated procedures and expenses. If you have specific gifts of personal belongings you wish to make, only a Last Will is binding to carry out your wishes. If your estate is substantial in value, you may need trust provisions to shelter portions of your estate from taxation and to be sure that the next generation is protected from premature and wasteful spending.

How do you make a Will?

A  Last Will must be in writing. Rhode Island law dictates the statutory requirements for creating a valid Will that will be recognized in its Courts. Not only is the drafting of the Will important so that your wishes are followed and no questions arise as to their interpretation later, but the execution of the Will must be carried out with specific formality so that the Will is "self-proving". We can give you the legal service you need to assure that your Will is proper, binding and responsive to your particular desires. Depending on your needs and desires, we may also suggest incorporating one or more trusts into your estate plan.

What if there is no Will?

If a Last Will is defective and a Court will not accept the same as having legal validity, it is the same as if the person died without a Will. If a Will is not accepted, or if a person did not make a Will, his or her property and possessions may be distributed by the laws of "intestate succession". These are state laws that direct which next of kin inherit a person's property. If a person dies without a legally valid Last Will, one cannot depart from these rules in making distributions even if the spouse, children or relatives know the decedent wished otherwise. And these rules may not adequately provide for a surviving family. That is why a Will is so important.

Is making a Will complicated?

No.  As a Rhode Island Estate Plan Attorney, we arrange an initial meeting in which you can discuss your concerns. We ask you to describe your assets (real estate, bank accounts, stocks, bonds, life insurance policies, etc.) and whether you own them by yourself or with another person. Then we discuss your wishes with regard to those properties, inclusing to whom and when you want your estate distributed. Have in mind who you choose to be the Executor of your Will, the Trustee (if we feel that a trust is necessary) and a Guardian for your minor children if you have any. Decide on a first choice and a second choice in case the first cannot serve. Then we will do the rest in drafting the documents to accomplish your goals.

In most instances the first appointment takes no more than one (1) hour. Then, within two (2) weeks you return to our office to sign your Last Will and related documents. The originals are held by either you or us, in safe keeping, as you direct. That's all there is to it.  We also, as stated below, will discuss and prepare legal documents concerning your health care decisions and who you want to make those decisions if you are unable to do so.

Can I avoid a Will by using joint accounts?

Probate may be avoided if all of your assets are in joint names. However, we do not suggest this as a your sole method of estate planning. Other problems arise including:

  • Probate will not be avoided if one or more accounts remain in your
    sole name even though all others are in joint names.
  • Probate will be required when the second "joint" owner passes away.
  • The Joint Owner can deplete the account without your knowledge.
  • The creditors of the joint owner can reach the account for the debts
    of the joint owner.
  • If the joint owner is not a spouse, the account may be divided in a
    divorce of the joint owner.
  • Certain tax benefits may be lost by using joint accounts

Do I need a Trust?

If you have children under the age of 18, you will need to have a Trust or provide Trust provisions in your Last Will. We can describe various trusts that are available as estate planning tools when we meet with you.

Under Rhode Island law a person is a minor until they are 18 years of age. As such, they can not contract and otherwise legally act on their own without the consent of a parent, trustee or court appointed guardian. Further, it may be your desire that upon your death your children who are over 18 years of age not have independent use of your assets without the consent of your responsible Trustee. Rather, you may want your assets held in trust until your child or children reach the age of 21, 25, 30, etc. In such instances, you can set out an amount to give each child each year until they attain the age you choose, or you can set forth the items that should be paid by the trust (collge, health insurance etc.).  Your children over 18 years of age would need the consent of your Trustee in order to invade the trust assets for other uses until they reach the age you have instructed for termination of the trust.

What is a Living Trust?

A Living Trust is a legal document that, just like a Last Will, contains your instructions for what you want to happen to your assets when you pass away. But unlike a Last Will, a Living (or revocable) Trust avoids probate at the time of death,  controls all of your assets owned by the trust, and prevents the Probate Court from controlling your assets placed into the Trust if you become incapacitated.

A Living Trust is a wonderful way for an aging parent to allow assets to be maintained according to his or her wishes during life and allows the appointment of a Trustee or Co-Trustee to help in the moving of funds and payment of expenses during the elder person's last years, Oftentimes, an elderly parent can lose critical vision, suffer reduced hearing and fail to keep accurate track of bills. A Trust can help a trusted child make sure the parents bills are paid and reduce the stress a parent may undergo as early dementia sets in.  We find that a Living Trust is very helpful as families work together when an aging parent moves into an Assisted Living Facility (ALF).

Am I set for life?

Often, a simple Will provides adequately for many years and in many cases may be all a person ever needs. If your life circumstances change substantially (i.e.: marriage, divorce, children, dramatic change in the value of your assets) you should have your Will reviewed.

Do not change or try to revoke your Last Will yourself. These actions should be taken in accordance with recognized procedures so that they cannot be challenged in Court later. If you do wish to change your  Last Will, we may prepare what is called a "codicil" for you containing the new terms of your estate plan.  We can also modify the terms of a revocable trust according to your wishes.

When should I review my Will?

A Last Will is never final until it takes effect upon one's death. Review your Will on any of these occasions:

  1. Change in residence
  2. Marriage, separation, divorce or a change in partnership relationships
  3. Birth/adoption of a child
  4. Acquisition of property in another state
  5. Increase/reduction in value of securities
  6. Children attaining age of maturity
  7. Marriage of a child
  8. Birth of a grandchild
  9. Disability of a loved one
  10. Sale of a business
  11. Retirement
  12. Any other changes in your financial condition.

What else might I need?

Estate planning is more than just preparing a Last Will or a Trust. We will also discuss with you things that you can do today with your estate to insure than the transfer of assets is done efficiently. We may also discuss the relationship between Medicare rules and estate planning.

People sometimes feel it is important to them and their families to express their wishes regarding old age or life-threatening illness. They may choose to:

  • designate an agent to make health care decisions for them if they
    cannot.
  • decide what types of artificial life support they may wish to forego.
  • appoint an attorney-in-fact to sign papers and manage their business
    or personal affairs if they are not able to.

If you feel this is something you wish to discuss, come in and talk to us. We can provide for such eventualities in the form of proper and binding documentation.

What does it cost?

It's not expensive. Talk to us, once we understand your circumstances we'll be happy to discuss the costs up front. In most instances, the cost ranges from $150 to $500 (without trust provisions). The real question is what is the cost if you don't have an estate plan.

Let Mr. Hirsch, a Rhode Island Lawyer since 1978 assist you in the business affairs of your estate. Chances are it will be something you do only once, maybe twice, and the time, money and effort it saves should be invaluable.