Planning for the future and care of an ill family member or the possibility of one’s own passing, is never easy. However, it is of the utmost importance to ensure that all belongings and loved ones are in good hands and more specifically, taken care of in the manner the deceased intended. Disputes and conflicts after the fact can lead to much larger problems in the long run.
Rajkowski Hansmeier Ltd. in St. Cloud proactively pursues any foreseen problem and technicality to eliminate issues before they arise. The firm’s expertise includes drafting wills, trusts, health care directives, power of attorney, and guardianships/conservatorships. The attorneys at Rajkowski Hansmeier help plan, lay out, and draft documents for the consequences of passing the estate on. A proactive approach to these matters ensures as little conflict as is possible by formalizing intentions, collecting all property, debt repayment, and planning for the distribution of personal effects after passing.
Health Care Directive
Power of Attorney
A will is a legal document that allows you to transfer your property at your death.It is also a simple way to ensure that your money, property, and personal belongings will be distributed as you wish after your death. A will also allows you to have full use of your property while you are alive.
When you need a will:
The law does not require that you have a will. However, a will is a useful tool that provides you with the ability to control how your estate will be divided.
If you die without a will, Minnesota’s inheritance laws will control how your estate will be divided.
A will is necessary if you want to leave property to a friend or a charity, to give certain items to certain people, or to leave someone out who would otherwise inherit from you. Also, you may wish to appoint a specific person to handle your estate. Thus, often it is best to write a will so your intentions can be met.
A will includes:
§ Your name and place of residence;
§ A description of any assets you wish to give to a specific person;
§ Names of spouse, children, and other beneficiaries such as charities or friends;
§ Alternative beneficiaries, in the event of a beneficiary dies before you do;
§ Establishment of trusts, if desired;
§ Name of a personal representative to manage the estate;
§ Name of a guardian for minor children;
§ Your signature; and
§ Witnesses' signature
A trust manages the distribution of your assets. The trustee holds the title to the property and manages the property for the benefit of the beneficiaries who may be a specific person, a group of people, or an organization. There are two types of trusts, living trusts and testamentary trusts.
A living trust:
A living trust is a legal document that, like a will, contains your instructions for what you want to happen to your assets when you die. But, unlike a will, a living trust avoids probate at death, can control all of your assets, and prevents the court from controlling your assets if you become incapacitated.
Also, unlike a will, a living trust does not die with you. A living trust can continue to provide for loved ones with special needs, or to protect the assets from beneficiaries’ creditors, ex-spouses and future death taxes.
A testamentary trust (also called an after-death trust) is a legal document that is created within a will, and therefore comes into existence after your death. Your assets usually go through the probate process and must be supervised by the court even after the estate is closed.
Special uses for trusts:
§ Charitable trust- used to make donations and realize tax savings for an estate
§ Bypass trust- allows a married couple, in certain cases, to shelter more of their estate from estate taxes
§ Spendthrift trust- used if the beneficiary is too young or does not have the mental capacity to handle money
§ Life insurance trust- used to give an estate liquidity.
A health care directive is a written document that informs others of your health care wishes. It allows you to name a person to make decisions for you if you are unable to do so. It will also guide doctors, family, and friends regarding your care at a time when you are not able to provide information.
Is a health care directive the same as a living trust:
No, a health care directive is different from a living trust. A health care directive is for medical affairs, while a living trust is about financial affairs.
A health care directive includes:
§ Goals, values, and preferences about health care
§ Preferences about specific medical treatments like artificial nutrition or hydration
§ Organ donation instructions
§ Funeral arrangements
§ Transfusions of blood and blood products
§ Diagnostic tests
§ Administration of drugs
§ Use of respirator
§ Pain relief and medication
§ Can be as detailed as you like
A power of attorney is a document authorizing someone to act on your behalf. You determine how much power the person you authorize will have over your affairs.
A durable power of attorney:
A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so. A durable power of attorney remains valid even if you become incompetent or incapacitated. Mentally competent people can revoke at any time. In the case of divorce, the ex-spouse’s authority is automatically terminated.
When to use a power of attorney:
You may want to use a power of attorney if you are unable or unwilling to handle your financial affairs yourself. You may also use a power of attorney to allow another individual to take care of your responsibilities at the time you become incapacitated. Having a power of attorney does not restrict you from doing these things on your own, but instead shares these responsibilities with someone else.
You choose to give your attorney the power to do some or all of the following:
§ Use your assets to pay your everyday expenses and those of your family;
§ Buy, sell, maintain, pay taxes on, and mortgage real estate and other property;
§ Manage benefits;
§ Invest your money is stocks, bonds, and mutual funds;
§ Handle transactions with your bank and other financial institutions;
§ Buy and sell insurance policies and annuities for you;
§ File and pay your taxes;
§ Operate your small business;
§ Claim property you inherit or are otherwise entitled to;
§ Hire someone to represent you in court; and
§ Manage your retirement accounts
There are three types of guardians. A guardian of the estate manages property and business affairs. A guardian of the person performs duties relating to personal care, custody, and control (this means that a guardian of the person has the right to approve medical, psychological, legal or other professional care and treatment). A general guardian takes care of both estate and personal care.
There are a few types of conservators. A conservator of the person is responsible for making decisions about personal matters for the conservatee, including decisions about medical care, food, clothing, and residence. Under a probate conservatorship, the conservator may not place the conservatee into a lock mental institution against his or her will.
A conservator of the estate is responsible for handling the financial affairs of the conservatee. The conservator has the power to collect all the conservatee’s assets, pay bills, make investments, etc. However, the conservator must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.
Why does someone need a guardian and/or a conservator
Adults need a guardian and/or conservator when they are mentally or physically incapacitated. Minors (those under the age of 18) need a guardian when the minor’s parents are no longer willing or able to take care of the minor. Minors need a conservator when the minor becomes entitled to funds and is still under the age of 18.
You choose to give your attorney the power to do some or all of the following: