Estate planning is something that everyone should undertake in order to prepare for an uncertain future. While some people may not think they have much of an “estate” to speak of, the reality is that we all have intentions for what we would like to happen to our property and our remains once we die.
There is also the matter of planning ahead for a situation where you may be incapacitated as a result of a medical condition. In these circumstances, the incapacitated individual will want to have appointed an agent with durable medical power of attorney, and they will want to have an advanced health care directive (“living will”) for the agent and close family members to consult in order to make critical medical decisions.
So in life, as well as in death, the care and effort you put into estate planning pay off for you by ensuring your wishes are specific, clearly understood, and can be legally enacted under New Mexico and federal law. Reviewing your intentions with an estate planning lawyer is the first step towards having this certainty.
New Mexico Financial & Family Law can assist you with all matters of estate planning, including the creation of a will, an advanced directive, medical/financial power of attorney, or trust formation. Our estate planning firm has spent decades of experience working with clients to help them understand their legal strategies available. We empower people in New Mexico and throughout the United States to ensure their voice is heard, even when they cannot physically speak.
Schedule a risk-free, confidential, no-obligation consultation and document review when you call (505) 503-1637 or contact us online today.
What All Is Needed for Estate Planning? — Estate Planning Checklist
Estate planning encompasses several major aspects, including the following:
- Last Will and Testament (Will) — This document describes how the individual (testator) wishes their property to be distributed to beneficiaries, how they want their remains to be handled after death, and any specific instructions the testator had in mind for after their death.
- If the testator has minor children or they are the caretaker of an adult child or spouse that lacks legal capacity, then the will can also describe wishes for who will assume guardianship over these individuals.
- Power of Attorney for Health Care — This document names an individual who can make medical decisions on your behalf should you become incapacitated.
- Durable Financial Power of Attorney — This document names an individual who has the authority to act on your behalf in order to make financial transactions and take actions like closing accounts.
- Living Will — Part of your advanced health care directive, the living will states your care preferences in the event you are incapacitated. Example care decisions include whether you would like CPR resuscitation should your vital signs fail, whether you would like a feeding tube inserted and whether you would object to certain life-saving procedures.
- Trusts — A trust can be formed during the lifetime of the person creating it (grantor), which is known as a living trust, or it can be created after their death according to instructions provided in a will. A revocable living trust can allow assets to be distributed to beneficiaries outside of probate and with no need for public disclosure.
- Other Aspects — Other aspects to consider include continuity plans for businesses you own/co-own and instructions for the property that is held in co-ownership with other individuals.
Proper Estate Planning Can Help You Avoid Probate
Probate is one of the most stressful aspects of executing a will and distributing inheritances to beneficiaries. While states like New Mexico take efforts to simplify probate and speed up the process, the reality is that probate will always invite unwanted risks to the execution of a will as intended. Our estate planning attorneys, therefore, handle many cases where the primary goal is to avoid probate.
When a will goes through probate, all assets of the deceased are made a matter of public record. Further, creditors and other claimants can make claims on estate assets, even if those assets were intended to go to a beneficiary. Those contesting a will or asserting a right to claim the certain property in the estate also have access to the courts to have their grievances heard.
All estates will go through probate when a will is executed, but some may be eligible for a simplified, informal probate process under New Mexico law. This includes estates that have a total value of $50,000 or less.
When An individual dies without having a valid will, their assets will be distributed according to the state’s Intestate Succession laws.
Estate Planning Trusts Keep Your Assets Out of Probate
If the value of an estate is transferred into a revocable living trust prior to the grantor’s death, then the instructions of the trust can be followed at the designated time in order to transfer property out of trust and to the named beneficiaries.
A revocable living trust can, therefore, be used in place of a will for the purposes of transferring most of the grantor’s assets. The grantor can name themselves as a trustee and designate a successor trustee to administrate the trust, follow financial instructions, and distribute property to beneficiaries as instructed.
Durable Financial Power of Attorney
Individuals concerned about what might happen to their financial accounts should they become incapacitated can appoint an agent through a durable financial power of attorney. This appointment can be effective immediately or designated to occur at a specific time or under a specific situation, such as when the designator becomes medically incapacitated.
You can also require in the language of the power of attorney that your proxy regularly provides accounting statements to a trusted third party, who can be given the authority to revoke the power of attorney in the event of certain acts. You should consult an attorney for appropriate language.
Advanced Health Care Directives
Your advanced health care directives are an important set of documents that describes your wishes in the event of incapacitation. These documents ensure that your own preferences and wishes are understood so that your immediate family can consent to certain medical actions accordingly. You may also wish to appoint an agent with a durable power of attorney for health care, who acts as a fiduciary according to your wishes and certain legal responsibilities. A Supported Decision-Making agreement is another option, which puts in writing your wishes and affirms that certain individuals, such as your spouse or children, understand these care preferences.
Individuals can express their preferences for medical care decisions to be made on their behalf, such as the following:
- The use of CPR, a defibrillator, and other life-saving measures
- The use of a ventilator
- The use of a feeding tube
- Whether life support should continue to be used after brain death
- Whether you wish to be placed in a long-term care facility once you have lost capacity
Estate Planning Should Happen Continuously — Not Just Once
Once your estate planning documents have been drafted, you should review them carefully with an estate planning attorney every few years. Your wishes may have changed, you may have come to new understandings about your preferences, or you may have new assets to account for in your trust and/or will. It is especially critical to review these sorts of documents in light of significant changes to state and federal laws as well as probate procedures.
Get Your Affairs in Order With Help From an Experienced Estate Planning Law Firm
At New Mexico Financial & Family Law, we are adept at speaking with clients, helping them understand the strategies available, explaining their options, and assisting with estate planning in accordance with their strongest wishes and preferences.
If you have not yet begun estate planning, you are never too young, and it is never too early to start! Putting off the critical tasks involved could mean confusion in the event of your unexpected death or incapacitation, and there is a strong chance your wishes could be disregarded.
If you have already started planning your affairs, we are eager to consult with you to review your current plans, ensure the validity of documents, and make sure that everything is up to date and in accordance with the most recent circumstances, as well as laws.
Reach out to us now to take the critical steps you need to take to prepare. We are ready to help you feel more confident about your future — whatever it may hold! Call (505) 503-1637 or contact us online today to schedule your confidential, no-obligation case review.