By Patrick Fitzagerald, transcribed by Katie Lillard
3 Documents That Everyone Should Have: Will, Power of Attorney, Health Care Directive
#1 A Will
Why do I need a will?
A will dictates the distribution of assets. Without a will, state law directs where your assets will pass after your death.
When you have a will, you decide who will handle your estate. In Maryland, this person is called a personal representative, sometimes referred to as an executor. Without naming a personal representative, a hierarchy of individuals could petition the local orphan court in Maryland to be the personal representative of your estate.
A will allows you to nominate a guardian for any minor or adult children who may need a guardian if you are no longer living. If you do not have a will, a hierarchy of individuals could petition the circuit court to become a guardian of a minor child and may not be who you would choose to be a guardian in your place.
How should I structure my will for my family?
The first thing to consider when you sit down with someone to write your will is who your fiduciaries will be.
A fiduciary is someone who has responsibility under your will. Here are some examples of different types of fiduciaries:
A personal representative or executor handles your estate and works with an attorney and the register of wills to go through probate or a state administration process.
A Trustee
A Guardian of your children
The second step in creating a will is to consider how you want your assets to be managed.
When you pass away, if assets are titled jointly with a spouse or you have beneficiary designations on retirement accounts, those assets will pass outside of a will directly to the joint owner or the beneficiaries you have designated on the retirement account or life insurance policy. To the extent that you alone are the surviving spouse or are a single person, and you have assets in your name alone, then those assets are going to be governed by your will. In cases with minor children, you'll have to decide how your assets will be protected for your children when you pass away.
Considerations for Your Children
How will you protect your assets for your children who are minors when you pass away?
A Testamentary Trust is created within the terms of a will that holds provisions for how assets can be used for a child’s benefit. For example, a person could create a testamentary trust with a trustee who manages assets. The trust says that a trustee can use the interest and principal and interest of the assets to use for the child’s health, maintenance, and support.
A Common Fund Trust is often set up for families with multiple children. This type of trust can be established for all children and left to mature until a specified time, usually determined by the youngest child reaching an adult age (typically 22-30 years old).
A Discretionary Trust can be set up without a termination age. This type of trust could exist throughout a child’s lifetime. A designated trustee has complete discretion over this type of trust and the children do not ever have control over the distribution of assets.
Why set up a discretionary trust?
For a minor child or adult child who may not be able to manage assets at any point in time, this type of trust would protect their assets for them. The trust would also name the end beneficiary at the end of the primary beneficiary’s lifetime.
For special needs children, setting up this type of trust would allow the child to continue to receive special benefits from the state of Maryland or federal benefits. This type of trust could be set up to provide supplemental benefits for a child under a trustee's discretion. In this circumstance, this type of trust is sometimes called a Third-party Party Special Needs Trust.
Without this type of trust setup, a special needs child would typically have access to your assets when they turn 18. They may have to create a self-settled special needs trust with the help of a named guardian. This process is longer and more involved.
Titling of Assets
Individuals named in a title or as beneficiaries always have control over a will. For example, if you own your home jointly, your home will pass to the other owner 100%. The same is true for any bank account or other asset that is jointly titled. If you have a beneficiary named on your retirement account, such as a spouse, the funds from that account will pass to that individual 100%.
One way to protect your assets for your children is to name a secondary beneficiary on retirement accounts. If you set up a trust for your children in your will, you can name that trust as a secondary beneficiary. If your primary beneficiary passes away, your funds could be funneled into a protected trust for your children.
Why is it important to have a financial power of attorney and advance medical directive?
A financial power of attorney is a document that names an attorney-in-fact. This document allows the named person to make decisions and take action concerning your assets during your lifetime. Typically this document is used in situations where you are no longer able to make decisions for yourself. Powers of financial attorney can be put into effect immediately, or when you can no longer make decisions.
A healthcare power of attorney and advance directives name an individual to make medical decisions for you. Often, this is someone different than the financial power of attorney. This person makes medical decisions for you, i.e. what sort of treatment you receive, and which doctors you see. In addition to a healthcare power of attorney, in the Maryland advance directive, there is also a section about end-of-life care (sometimes referred to as a living will). This document states what type of care you’d like at the end of your life so that your loved ones do not have to make those decisions when the time comes.
Should your adult children establish an advance medical directive?
Yes. As children turn 18, it is not necessarily assumed that parents will make decisions for their children in the event of an emergency. If your child is in an accident or faces a major life-threatening illness, and they are over the age of 18, you may not be able to make medical decisions for them.
About Patrick
Patrick Fitzgerald is a native of Talbot County and graduated from Easton High School before completing undergraduate degrees in Accounting and Economics at the University of Pittsburgh and earning his J.D. at the University of Baltimore School of Law. After law school, Fitzgerald completed additional coursework at the University of Baltimore, earning an LLM (Master of Laws) in Taxation and a Certificate in Estate Planning. He has practiced law in Easton since 2008.
For more information, please contact Patrick at pat@pjfitzgeraldlaw.com.