Estate planning protects your family from costly court battles and ensures your wishes are followed when you can’t speak for yourself. Most people over 45 with families and assets need more than just a will. Here’s what you should know before your first consultation.
The Two-Part Structure of Estate Planning
Estate planning covers two distinct timeframes: while you’re alive and after you die. Many people focus only on what happens after death, but the documents that protect you during life are just as important.
During life, you need documents that let someone else make decisions if you’re incapacitated. After death, you need documents that distribute your assets and care for dependents. Revocable trusts bridge these two areas, working both during your lifetime and after you pass.
The biggest misconception? That your spouse or family can automatically make decisions for you. Unless you’re under 18 or have a court-appointed guardian, no one has legal authority to act on your behalf without proper documentation. Not your spouse. Not your adult children. No one.
Documents You Need While You’re Living
Medical Power of Attorney/Living Will
This document names someone to make healthcare decisions when you can’t. Your medical power of attorney includes what’s often called a healthcare directive or living will. In some states these are different documents.
If you want co-agents, name a third person as a tiebreaker. Having three people coordinate on every medical decision isn’t practical, but you need someone to break a deadlock if two agents disagree otherwise a court will make that decision for you, defeating the purpose of having a power of attorney in the first place.
You should have names, addresses, and phone numbers for everyone you appoint.
Important distinction: This is not a POLST (Physician’s Orders for Life-Sustaining Treatment) or a DNR (Do Not Resuscitate). Those are doctor’s orders. Attorneys can’t prepare them because they require a physician’s involvement. However, it is important that if you have a POLST, it matches your Medical Power of Attorney/Living Will.
Financial Power of Attorney
Someone needs authority to handle your finances if you become incapacitated. This document names that person.
Your financial agent can manage taxes, debts, bank accounts, and other money matters. You decide which powers to grant when you create the document.
Like medical powers of attorney, co-agents need a tiebreaker to avoid deadlock.
You also choose when this document takes effect. It can work immediately or only kick in when you’re incapacitated.
Guardianship Nomination
This document tells the court who you want as your guardian if you ever need one. It’s your backup plan if you don’t have powers of attorney or if they fail.
You name separate people for two roles: someone to manage your finances (guardian of the estate) and someone to make medical decisions (guardian of the person) or you can choose the same person to handle both.
These typically match whoever you named in your powers of attorney. If you name co-guardians, add a third as a tiebreaker.
Pet Directive
Pet owners can create a document appointing someone to care for their animals if they’re unable to.
Name a guardian or agent with their contact information. You can name co-guardians or a primary and backup person.
The document covers everything about your pet’s care: habits, living situation, food preferences, medical needs, and any other relevant details.
Trusts: The Bridge Between Life and Death
Trusts work both while you’re alive and after you die. That’s why they’re the cornerstone of most comprehensive estate plans.
Understanding the Roles
Three parties are involved in every trust:
The trustee manages everything. They have complete control. This can be you initially, then someone else after you die or become incapacitated. Trustees can be corporate entities (banks, financial advisors, CPAs, attorneys) but they’re typically more expensive than individual trustees.
The trustor or grantor creates the trust. That’s you.
The beneficiaries receive the assets or funds.
What You Can Control with Trust Provisions
A revocable or family trust (the most common type) lets you add provisions that protect your beneficiaries and your wishes.
Drug and alcohol provisions prevent your money from funding someone’s addiction or making their problems worse.
Special needs provisions protect beneficiaries with disabilities from losing government benefits.
Distribution schedules let you control when beneficiaries receive money. Common options:
- 50% at age 25, 50% at age 30
- 100% at age 21
- Tied to milestones like finishing a four-year degree, completing trade school, or presenting a business plan
You can create any stipulation you want as long as it doesn’t violate public policy. You can’t require someone to get divorced before receiving an inheritance, for example.
Creating Your Trust: Decisions to Make
You need to name successor trustees (primary and alternate) who will manage the trust after you.
Then identify your beneficiaries and what percentage each receives. Name alternates in case a beneficiary dies before you.
List any specific gifts: particular dollar amounts for certain people or family heirlooms that should go to specific individuals.
Choose a name for your trust.
Create an asset list showing what needs to transfer into the trust.
Trust-Related Documents
A certificate of trust or memorandum of trust is a shortened version that proves your trust exists without revealing private details. You’ll need this when dealing with financial institutions.
Trust funding instructions guide you through transferring assets into the trust.
Trustee duties documentation explains what your successor trustee needs to do. Give this to whoever you’ve named so they understand their responsibilities.
You’ll also need assignments for personal property and business interests, plus quitclaim deeds for real estate that needs to transfer into the trust.
After Death Documents
Wills and Pour-Over Wills
Most people think of wills when they hear “estate planning.” A will distributes your assets when you die and names guardians for minor children.
A pour-over will works with a trust. Any assets outside your trust get “poured over” into it after going through probate.
Here’s the critical point: A will does not avoid probate. Never. It only tells the court who gets your assets after the probate process completes.
Probate is the court process for handling your assets and debts. It costs thousands of dollars in court fees and attorney costs and it often drags on for six months, and in many cases, well over a year. It prevents your beneficiaries from accessing funds quickly or managing your affairs efficiently.
Proper estate planning with a trust avoids probate entirely.
Don’t confuse this with a “living will,” which states your wishes regarding end of life care.
For wills, you make the same decisions as with a trust, but you also need to name guardians for minor children and alternates.
Disposition Instructions
This legal document covers what happens to your remains. You name a designee who can speak with the coroner or police and you state whether you prefer burial or cremation.
After a Loved One Passes Checklist
You can give this document to family members so they know what to do when you die. It lists the steps they need to take and the order to take them.
Transfer on Death Documents
If you have real property but don’t want a trust, you can use a transfer on death document.
The downside: Beneficiaries likely can’t sell the property for a period of time while creditors have the opportunity to make claims. You also can’t provide detailed instructions like you can with a trust.
Additional Services Worth Knowing About
Trust Funding Assistance
Attorneys can draft the letters you need to send to financial institutions. You handle the mailing and paperwork submission, but the attorney does the legal writing.
Out-of-State Property Transfers
If you own property in multiple states, attorneys can help transfer those assets.
Collaborative Planning Consultations
Many firms offer free consultations with preferred partners for related planning needs.
Client Care Programs: Keeping Your Plan Current
Estate planning isn’t one and done. Laws change. Your life circumstances change. A client care program (sometimes called an estate essential insider program) keeps everything current.
These programs typically include:
- Annual estate planning workshops to confirm your plan still works
- Annual law update seminars covering changes that affect your documents
- One annual attorney meeting to review documents or bring family members in to discuss your plan
- Access to a legacy vault for storing important information
- Discounts on future services
How Much Does This Cost?
Most firms offer package plans that bundle documents at a discount. Buying individual documents costs hundreds more than choosing a package.
Common package structures include four tiers, with a mid-range “gold” package being the most popular. Starting prices are provided during consultations, where you’ll discuss detailed pricing based on your specific needs.
Going through probate almost always costs more than proper estate planning. Probate can run into thousands of dollars in court and attorney fees, plus months of delays and emotional stress for your family.
You can choose individual documents if that fits your situation better, but packages provide significant savings for most people.
All documents are limited to your state. Prices and available documents can change.
Preparing for Your Consultation
Come to your meeting with questions. This is a lot of information to process, and attorneys expect you to need clarification.
You’ll need to submit an intake form within 24 hours of your consultation. It doesn’t need to be complete. The attorney will help you answer questions you don’t have information for yet.
Think about:
- Who you trust to make medical decisions for you
- Who should handle your finances if you can’t
- What you want to happen to your assets
- Who should care for your minor children
- How you want your children raised
- What should happen to your pets
- Your preferences about life support and end-of-life care
During the consultation, the attorney will identify which documents you actually need. You might not need everything listed here, or you might need additional specialized documents.
The goal is creating a plan that protects your family from unnecessary costs, delays, and stress during already difficult times. Every situation is different, which is why the consultation focuses on your specific circumstances rather than a one-size-fits-all approach.
Key Takeaways
- Powers of attorney are not automatic for spouses or family—you must create them or no one has legal authority to act for you
- Name tiebreakers for all co-agent arrangements to prevent deadlocks in medical and financial decisions
- Properly funded trusts avoid probate entirely—wills alone do not and will cost your family thousands in court fees
- Distribution provisions protect beneficiaries—drug/alcohol and special needs clauses prevent money from causing harm
- Submit your intake within 24 hours of consultation—but it doesn’t need to be complete
- Package plans save hundreds over individual documents—most people choose mid-tier options that cover core needs
Frequently Asked Questions
Can my spouse automatically make medical decisions for me if I’m incapacitated?
No. Unless you’re under 18 or have a court-appointed guardian, no one has automatic authority to make decisions for you. You need a medical power of attorney to give your spouse (or anyone else) that legal authority.
What’s the difference between a will and a trust?
Both a will and a trust let you name who receives your assets and who will handle your affairs after you die. However, a will only takes effect after you die and requires probate court proceedings. A trust can operate during your life and after death, avoids probate, and gives you more control over how and when beneficiaries receive assets. Wills are simpler, but trusts save your family time and money.
Do I really need both medical and financial powers of attorney?
Yes. Medical powers of attorney only cover healthcare decisions. Financial powers of attorney only cover money matters. You need both to ensure someone can handle all aspects of your life if you’re incapacitated.
How much does probate actually cost?
Probate typically costs thousands of dollars in court fees and attorney costs. The exact amount depends on your estate size, location, and complexity, but proper estate planning with a trust avoids these costs entirely. Probate also takes months or longer, preventing your family from accessing funds when they need them.
Can I name someone who lives in another state as my guardian or agent?
For nominated guardians, it depends on the state in which you reside, and the type of guardianship sought. However, you can name an out-of-state agent as your power of attorney.
What happens if my two co-agents can’t agree on a decision?
This is why you name a third person as a tiebreaker. Without a tiebreaker, co-agents can deadlock and be unable to act on your behalf and a court will be end up making that decision for you. This defeats the purpose of having the power of attorney in the first place.
Should I put conditions on when my beneficiaries receive their inheritance?
Many people do. Common conditions include age milestones (50% at 25, 50% at 30) or achievements like finishing college or trade school. You can set any conditions that aren’t against public policy. Drug and alcohol provisions are common when beneficiaries struggle with addiction.
What’s a pour-over will and do I need one with my trust?
A pour-over will catches any assets you forgot to transfer into your trust. Those assets go through probate first, then get poured into your trust and distributed according to your trust terms. It’s a safety net for your trust-based estate plan.
Can attorneys prepare a DNR or POLST for me?
No. Those are physician’s orders and require a doctor’s involvement. Attorneys can prepare powers of attorney and declarations that work similarly, but actual DNR and POLST orders must come from your physician.
How often should I update my estate planning documents?
Review your documents every few years or whenever you have major life changes (marriage, divorce, birth of a child, significant asset changes, moving to a new state). Client care programs typically include annual review meetings with an attorney to keep everything current.
