Wills

E ach attorney with our firm understands that business owners are often so preoccupied with running the day to day operations of their businesses they often do not have time to properly think about, let alone actually put into effect, a properly designed estate plan. Ironically, the business itself, or proceeds from its sale, may be one of the most valuable asset that a business owner has to pass to his or her heirs and merits special attention and careful planning.

For business owners and non-business-owners alike, a basic estate plan may include a will, general or special durable financial power of attorney, health care power of attorney, and a living will (sometimes called a declaration of desire for a natural death), as well as actions taken for dealing with non-probate estates, such as joint bank accounts and life insurance policies with a named beneficiary.

A will, and any separately written codicil, can address the transfer of one’s estate to heirs through both general and specific devisements. So-called “mirror” wills between a husband and wife reflect each other in leaving the majority of each spouse’s estate to the other spouse, unless the other spouse predeceases them. In such cases, the testator leaves the bulk of the estate to family members per stirpes—first to the children on a pro rata basis; if a child predeceases the parent, then to that child’s children; if there are no children or grandchildren, then to siblings; and if there are no children, grandchildren, or siblings, then to the parents. In every case, the testator can make specific gifts of particular items to designated individuals.

If the testator (the person creating the will) has minor children, they can include a testamentary trust in the will to control when and how their children receive any part of the estate. Most people hesitate to give a significant portion of their estate to a minor or even to a child who hasn’t reached a certain level of maturity and responsibility. They often want to ensure the inheritance is used—or withheld—for specific purposes, such as paying for a child’s college education. For these reasons, testators generally choose to include a testamentary trust in their will. This allows them to name a guardian for any minor children and to appoint that guardian to act as both caregiver and trustee, managing any part of the estate left to a minor child in accordance with the testator’s instructions.

A general or special durable financial power of attorney allows someone to grant legal authority to another person or persons to handle all or just some of their financial affairs during any time, and only for such time, as such person is mentally incapacitated, whether comatose from an accident, subject to senility, or other mentally incapacitating event.

A health care power of attorney and a living will have many similarities, but are different in scope. Whereas a health care power of attorney allows a person to authorize someone else to make health care decisions on their behalf—subject to any guidelines and restrictions they include in the document—a living will primarily addresses whether to use extensive measures to prolong life when the individual is likely to remain in a vegetative state despite those efforts. These decisions are difficult, and individuals should carefully consider them after consulting with an attorney who is knowledgeable in this area of law.

A living will is a legal document that outlines your wishes regarding medical treatment in the event that you become incapacitated and unable to communicate your decisions. It typically covers whether you want life-sustaining treatments (like ventilators, feeding tubes, or resuscitation) if you’re terminally ill or permanently unconscious, your preferences for pain management, organ donation, or palliative care, and specific instructions on treatments you do or do not want.

Business owners, however, have estate planning needs and concerns that non- business-owners do not. Some business owners may at least have a will. Fewer still will have financial and health care powers of attorney or a living will. If you are the sole owner of your business you will need to consider who will have the legal authority to immediately handle the needs and emergencies of the business and its obligations in the event of your ever becoming mentally incapacitated or upon your death and prior to a confirmation of a personal representative for your estate.

For this reason, every sole business owner should create a financial power of attorney to grant a trusted person or persons the authority to manage business affairs during any period of mental incapacity or before the court appoints or confirms a personal representative for the owner’s estate.

Similarly, every owner in a multi-owner business entity whether a partnership, corporation, or LLC should have either a business succession plan in place (particularly in a family owned business) or proper buy-sell agreement and funding mechanisms in place if the owner does not intend to pass her or her business interest on to his or her heirs. Buy-sell agreements are often funded with life insurance, disability insurance, or other pre-planned funding mechanisms.

Estate planning documentation includes, but is not limited to:

• Simple Will
• Spousal Mirror Wills
• Will for Single Man with Children
• Will for Married Woman with Children
• Will for Single Man without Children
• Will for Married Woman without Children
• General Power of Attorney
• Special Power of Attorney
• Health Care Power of Attorney
• Living Will (Declaration of a Desire for a Natural Death)
• Durable Power of Attorney
• Testamentary Trust and others

Contact an attorney with our firm today to begin planning for your estate planning and business needs. If scheduling a meeting with an attorney with our law firm, information such as a list of major assets and their approximate values, the names and addresses of specific heirs and at least two or three possible personal representatives for your estate, and one or more potential guardians for any minor children will be required, as well as the tax map numbers for identifying specific real estate.