What to include in an estate plan

By Elliot Raphaelson
Posted on February 10, 2025

Many individuals, even those with significant assets, are negligent in establishing a comprehensive estate plan. A will, although necessary, is not sufficient.

In this column I will discuss wills and other documents that you should consider. Consult with your attorney about including the following documents in your estate plan.

Will: A will is the document that contains a written statement of your instructions regarding your estate. The individual(s) responsible for managing your estate is the administrator. He or she is responsible for following the instructions you specify in the will. Your instructions are not limited to property disbursement.

If you die without a will, aka “intestate,” state law determines how the estate assets are distributed. The court will then assign an executor. It is unlikely that this option will meet your best interests.

Probate is the process by which your will and estate are administered. The probate process is likely to be time- consuming and expensive. A properly designed estate plan can bypass probate, expedite the transfer of assets, and avoid unnecessary expenses.

Living trust: A living trust can be an important part of an effective estate plan. Among the possible advantages are:

Assets owned by properly designed living trusts can avoid probate, save associated expenses and transfer assets to beneficiaries quickly.
The living trust protects the assets during your lifetime and ensures they are managed properly without your assistance.
Privacy. A will is filed in a local courthouse, and is available to the general public. A living trust is not part of a public record unless there is litigation.

Power of attorney: Personal property and business property owned by you cannot be sold or managed by anyone but you. If you become incapacitated for any reason, and are unable to manage your finances, someone has to be able to pay bills and manage your assets.

Without a power of attorney, your family will have to go to court and obtain an order that you are incompetent to manage your property. This is a time consuming and expensive process, and the court may not assign the right party to manage the property.

A power of attorney provides an agent the legal right to manage the property. This right can be either general or limited, which would specify the asset included in the power of attorney.

The standard power of attorney expires when the individual who signed the document is incapacitated. That is why “durable power of attorney” was established, which continues in effect after incapacitation. This document is very important and is accepted in every state.

Advance medical directive: An AMD is a specialized power of attorney to appoint someone to make health decisions when you are not capable of doing so. Naturally, you would only appointment someone who knows you well, such as your spouse, to have this power.

Do-not-resuscitate order: Do-not-resuscitate (DNR) and do-not-hospitalize (DNH) orders are used by individuals, generally elderly, who are frail and do not wish to be subject to CPR or similar procedures. Make sure your medical providers have a copy of the order if you develop one.

HIPAA authorization: This document authorizes medical providers to release medical information to the persons you name without violating the privacy provisions of the Health Insurance Portability and Accountability Act of 1996.

Bypassing probate

Specifying only in your will how you want your assets allocated does not bypass probate. Here are some alternatives to avoid probate (the following alternatives override provisions in your will):

a living trust
joint ownership with right of survivorship
beneficiary designations such as transfer on death (TOD) and payable on death (POD)

TOD and POD can be used at your financial institutions and brokerage firms for your financial accounts. These options can also be used for real estate and automobiles, depending on state law.

I recommend that you provide your attorney with a comprehensive list of all your financial assets and liabilities and current registration to determine what actions you should take to bypass probate.

Don’t procrastinate. If you haven’t developed a comprehensive estate plan, call your attorney for a meeting as soon as possible.