What is an Estate Plan? Do I need one?
Estate planning is the process of creating a plan to give away your property to who you want, when you want, and provide a soft landing for your loved ones once you die. This is done by working with an estate planning attorney, CPA, and financial planner. A complete estate plan addresses what happens to you and your property if you become incapacitated or in the event of your death. Because incapacity and death often occur without notice, taking this important step is for anyone over 18.
What if I do not have an Estate Plan?
Without a plan, the state steps in as “default executor” and takes over your estate. This is called dying intestate. The intestacy process involves courts, lawyers, judges, and related fees. It can be expensive. It can also be emotionally draining for loved ones as they watch the court make the decision of who will administer the estate. Delays caused by court procedures can cause the estate settlement process to take a considerable amount of time.
What are the two types of estate plans?
Will-based Plan: A will-based estate plan uses the last will and testament (will) as the primary controlling document. A will is a document that takes effect upon your death after it has been proven by a court of law through the process of probate. A will appoints an executor(s) or personal representative to act on your behalf.
Trust-based Plan: A trust-based estate plan uses a revocable living trust (trust) as the primary controlling document. A trust takes effect immediately upon signing, and for this reason, it is the best solution for incapacity. It is called “revocable” because it can be changed at any time. Often, the person or couple that create a trust, also serve as initial trustee(s) to provide for changes in the future and retain control.
What documents are often included in an estate plan?
A will or trust, powers of attorney, living will, HIPPA authorization, pour-over will, trust affidavit, and letter of last instruction.
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Pros | Cons |
| Will | Less cost to setup | Probate, which takes time |
| Easy to create | Estate frozen until probate | |
| For simple estates | Court & lawyer costs | |
| All information is public | ||
| Trust | Avoids probate & is private | Involved to setup |
| Quick settlement of estate | More expensive at start | |
| Best solution for incapacity | Can be complicated | |
| Easy to change |
Notice: This is general information and should not be relied upon as legal advice. For a consultation, contact JohnsonLegal.us or call 910-319-7373. (Version: 11/21)
Shane T. Johnson is the CEO and Managing Partner of Johnson Legal, an estate planning and business law firm in Wilmington, NC. With years of experience in estate and business law, he has zealously represented clients in various legal matters, including small business formation and purchasing, estate planning, probate, domestic violence, and other legal cases.
Shane received his Juris Doctor from the University of Wyoming and is a member of the North Carolina Bar Association. He has received numerous accolades for her work, including being named among the Best Probate Lawyers in Wilmington by Expertise.com.
