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Overview of Estate Planning Documents


Why Do I Need A Will?

A will is a legal document that allows a person to decide how their property will be distributed after death.  You can also include in a will important matters such as naming a guardian for your children, setting up a trust for your spouse, children, or other important people in your life, and to minimize estate taxes.  Without a will, the intestate (without a will) inheritance laws of the state in which you reside   will decide how and to whom to distribute your assets. 


Why Do I Need a Power of Attorney?

A power of attorney is a legal document that allows a person that you name to take care of your family, financial, business, and legal matters should you become disabled or incompetent and unable to handle your own affairs.  Without a power of attorney (POA), the Hawaii courts will appoint someone to handle your affairs.  This may also take time to accomplish.  If you have a power of attorney, it can take effect immediately upon your incapacity and allow a spouse or other family member to cash checks, pay bills, and continue doing the important matters without delay.


Why do I need a Healthcare Directive?  How does this differ from a Living Will?

A healthcare directive, also known as a healthcare power of attorney, is a legal document that allows you to select a person to make healthcare decisions on your behalf should you become disabled or incompetent to make your own healthcare decisions. If you do not have a healthcare directive, more power is placed in the hands of the treating physicians to make decisions regarding  procedures and treatment.  Although the treating physician may consult with your spouse or family, they are not required to follow the family's wishes without a healthcare directive in place.   This is especially true if one family member wants you to have a treatment and another does not want you to have the treatment.  In those cases, the doctor makes the decision based on their medical opinion or in some circumstances, the Hawaii court will become involved through legal proceedings.   With a healthcare directive in place, your spouse or other family member you designate makes these important decisions for you and by law, the doctor must follow their directive.

A Living Will is a legal document that directs health care providers on what type of basic care they are to provide (or not provide) to you should you be unable to make your own healthcare decisions at the time of treatment.  This may include instructions on withholding treatment, nutrition, hydration should you be in a non-responsive persistive coma or other non-responsive state.  This type of document is less flexible than appointing a trusted person as your healthcare power of attorney, but may be appropriate for some individuals.

Do I need a trust?

A trust is a legal entity created by a person (grantor) with a trust document that provides for benefits for designated people (beneficiaries).  The trustee manages the assets placed in the trust for the beneficiaries.  There are a number of different types of trusts and different purposes for creating a trust.  A trust can be part of a will or a seperate document.  People often use trusts to "avoid probate," that is, simplify and expedite the access to a person's financial resources after they die without waiting for the the time it takes a person's personal representative to fulfill all of the legal requirements (probate) necessary before the estate can be distributed to family members.  Trusts are also used to control the access and distribution of financial resources to children and family members after your death in a manner you decide is best. A trust can also be used to reduce the amount of estate taxes collected by the federal and state government.  Whether you need to create a trust is dependent on your personal financial situation and your estate planning goals.  The pros and cons of a trust for your particular circumstances can best be discussed during our estate planning meeting.


How often should I review my estate plan?

Every person with any assets or family should have in place an up-to-date will, healthcare directive, and durable power of attorney.  In some cases, a trust may also be appropriate.  It is a good practice to review your estate plan every five years to determine if any changes need to be made based on changes in your health, lifestyle, family circumstances, grandchildren, or other changes in your family. 

Even if you already have a will or other estate planning documents, if any of the following circumstances in your life has occurred, you should review your estate plan with a qualified attorney in the state you currently reside:

  • increase of financial assets
  • moved since your last estate documents
  • purchase or sale of real estate
  • purchase or sale of stocks, bonds
  • retirement
  • additional children or grandchildren
  • minor children have become adults
  • change in marital status
  • death of a partner, spouse, or family member
  • change in who you would want as your healthcare decision maker
  • change in who you would want to handle your affairs should you become incapacitated
  • other life circumstances that affect how you would like your estate to be distributed when you die