In most estate plans there are five basic documents involved Three documents deal with death related issues, those being the Revocable Living Trust, The Last Will and Testament, and The Certificate of Trust. The other two documents deal with incapacity related issues, those being the Durable Power of Attorney for Financial Management and the Advance Health Care Directive. The basic descriptions of these documents are as follows:
Revocable Living Trust:
A Revocable Living Trust (also known as a family trust or intervivos trust) is a legal entity which you create, supervise and control which holds all of your assets (with some limited exceptions). The trust contains provisions which are similar to a will thereby distributing your assets to the persons that you want to receive them. It also names a Successor Trustee to take over for you (and your spouse) in the event of your death or incapacity. A living trust is a separate legal entity created by you for the purpose of maintaining control of your assets during your lifetime and also upon your death. Other examples of legal entities are corporations, limited liability companies and partnerships. What makes a living trust unique is the ability of the creator of the trust to maintain control over the management and distribution of the assets in the trust during his/her/their entire lifetimes and also for many years after his/her/their death. In fact, it is incredibly difficult to get a court to modify the terms of the living trust after death and it rarely happens absent some unique set of circumstances.
Last Will and Testament (Pourover Will):
A Last Will and Testament (Pourover Will) provides for all assets not in the trust at the time of death to be transferred to the trust. It also nominates guardians for your minor children.
Certificate of Trust:
A Certificate of Trust is a short document that lists the relevant but non private information about your trust. Quite often you can provide this document to banks, investment companies and other custodians instead of giving them a complete copy of your trust.
Durable Power of Attorney for Financial Management:
A Durable Power of Attorney for Financial Management grants powers to another person designated by you to manage your affairs in the event of your incapacity. In most cases it will eliminate the need for a court-imposed conservator ship.
Advance Health Care Directive:
An Advance Health Care Directive grants permission to another person, designated by you, to make health care decisions on your behalf in the event of your incapacity. It also allows you to make life-support decisions for yourself and to choose whether you wish to donate organs. In most cases it eliminates the need for a court-imposed conservator ship.