What a Beneficiary Controlled Trust Can Do to Protect Your Legacy After You Are Gone

Many estate planners believe that their job is done when the beneficiaries avoid probate and receive their inheritance. However, when beneficiaries receive their inheritance in their name outright, that needlessly exposes the legacy you leave to the claims of creditors, lawsuits, divorce, the loss of governmental benefits they might otherwise receive and even a second estate tax when they die. “Outright” distributions from the trust to the beneficiary in his or her name should rarely occur for large or even relatively modest estates.

A better approach is for each beneficiary’s inheritance to go into his or her own Beneficiary Controlled Trust. If properly drafted and funded, the beneficiary can control, use and enjoy the inheritance with fewer risks than outright ownership. A Beneficiary Controlled Trust will help protect your loved ones from the bad things in life that may occur without any fault of your loved ones. For example, divorce, lawsuits, creditor claims, bankruptcy or even estate tax upon their death. Sadly, bad things happen to good people. On the other hand, a spendthrift trust is traditionally intended to be used for beneficiaries who are not trusted to make good financial decisions. A spendthrift trust is similar to a spigot on a hose. The trustee in his or her discretion can open the spigot to permit spending or close the spigot to restrict or prevent spending by the beneficiary.

Asset Protection with Plenty of Control

A Beneficiary Controlled Trust refers to a trust where the beneficiary may also be the controlling trustee. The beneficiary can be provided virtually the same control as he or she would have with outright ownership. For example, the beneficiary, as the controlling trustee, could make all investment decisions. Investments such as a home or brokerage account would be held in the name of the trust and would be better protected from lawsuits, divorce, creditors or predators.

After they inherit, the primary beneficiary could alter the level of control or protection if greater risks arose. They could appoint a  co­-trustee to control distributions or even investments. If the risk is very high, the primary beneficiary could even resign as trustee and appoint their best friend, trusted family member or professional to act as Trustee. We represented a beneficiary who was going through a contested divorce at the time she was inheriting funds from her mother. She designated her son to be the Trustee to further separate her inheritance from the divorce proceedings. We had a similar situation where a client was being sued regarding a car accident that resulted in a death. In that case, the client designated his best friend to act as the Trustee.

An HEMS Trust: Estate Tax Protection Comes with Vulnerability

If the primary beneficiary wants to act as the sole trustee with control over investments and administration, distributions can be limited to the beneficiary’s health, education, maintenance and support (“HEMS”) to avoid estate tax (the “HEMS Trust”). This structure is designated by the Grantor (or trust creator) in the trust instrument or document created. However, some states permit certain creditors, such as a divorcing spouse or health care providers, to pierce through the trust and access assets up to the HEMS standard.

If they obtain a judgment against the beneficiary, the price to be paid for the beneficiary’s additional control is potentially weaker creditor protection. A better approach, from a creditor protection standpoint, may be to empower the trustee to make discretionary distributions not tied to any specific standard.

Going with an Independent Trustee Instead

If the primary beneficiary of a Beneficiary Controlled  seeks even greater asset protection, then they can appoint an independent trustee who acts as the distribution trustee. The independent trustee is authorized to make distributions to the beneficiary in such amounts and at such times as may be determined in the sole discretion of that Independent Distribution Trustee (the “Discretionary Trust”). The Discretionary Trust generally provides greater asset protection irrespective of the beneficiary’s state of residence.

Considering what happened to Brittney Spears, the beneficiary may be concerned about giving such discretion to the Independent Distribution Trustee. This issue can be minimized by providing the primary beneficiary with the right to remove and replace the Independent Distribution Trustee. While the beneficiary does not have direct control over distributions, the beneficiary can select who does hold the power, so long as the person selected is not a related party or subordinate person.

2 Ways to Deal with the Tax Consequences of Trusts

Careful consideration must also be given to the trust income tax rules. The highest marginal federal income tax rate for ordinary investment income is now 37%. In 2021 the highest federal income tax rates are triggered with income for a single individual of $523,601 or more. For married taxpayers, the highest federal income tax rates are triggered with income of $628,301  or more. The highest marginal tax rate for a trust is also 37% in 2021 — but it is triggered with income of only $13,050. The difference in tax liability can be substantial.

To help deal with that tax issue, the Beneficiary Controlled Trust can be drafted in some cases to be a “Grantor Trust.” A Grantor Trust is a trust that is “disregarded” for income tax purposes. Income is taxed to the beneficiary without regard to whether the income is distributed to the beneficiary. A Grantor Trust will avoid application of the higher tax rates for a trust.

Alternatively, the Beneficiary Controlled Trust can be drafted as a “Complex Trust” for income tax purposes. The Complex Trust files a separate tax return. Income actually distributed to the beneficiary is taxed at the beneficiary’s lower individual tax rates. Only income not distributed by the Trust will be taxed at the higher trust income tax rates.

There is no single best approach, and careful analysis of the client’s goals, concerns and situation should always be analyzed. The Trust may, in some circumstances, have an ability to toggle, or switch, between a Grantor Trust and a Complex Trust.

As a general rule, a client with a substantial estate should always consider the protective features of a Beneficiary Controlled Trust. If you have any questions about this topic. Please contact the Goralka Law Firm.

Founder, The Goralka Law Firm

Founder of The Goralka Law Firm, John M. Goralka assists business owners, real estate owners and successful families to achieve their enlightened dreams by better protecting their assets, minimizing income and estate tax and resolving messes and transitions to preserve, protect and enhance their legacy. John is one of few California attorneys certified as a Specialist by the State Bar of California Board of Legal Specialization in both Taxation and Estate Planning, Trust and Probate.

Source: kiplinger.com

4 Reasons Families Fail When Transferring Wealth

Over the next 25 years, analysts anticipate $68 trillion to be passed down to younger generations and charities. While the importance of legacy planning is not limited to the forthcoming Great Wealth Transfer, it does spotlight the significant amount of wealth that has been created, primarily by Baby Boomers, and the need to transition these assets thoughtfully. A legacy plan, regardless of the size of a portfolio, is an essential component of the financial planning process, ensuring the assets an individual has spent their entire life accumulating will transfer to the people and organizations they want, and that family members are well-prepared to inherit and execute their wishes.

There are, however, four common missteps that can cause individuals and families to veer off track.

1 of 4

Failure to create a plan

A woman lounges on a couch lazily.A woman lounges on a couch lazily.

It’s difficult for individuals to think about their own passing, so this tends to push planning off “to another day.” Of course, if an individual passes before a plan is in place, their goals and wishes cannot be executed.

I guide clients to establish a legacy plan as early as possible. While every individual is different and there is no steadfast rule regarding when precisely to create a plan, sooner is almost always better. When an individual begins to envision or has a preference about where and how their assets are transferred – say it is passing down specific heirlooms, charities receiving a portion of wealth, or a family business transitioning to younger generations – it should trigger the need to put a plan in place.

Understand that a legacy plan can evolve over time; you don’t just set it and forget it. A plan should be rooted in what an individual or family envisions today, but with the flexibility to accommodate for changes in the future.

2 of 4

Lack of communication and trust

A man makes the universal symbol for "My lips are sealed."A man makes the universal symbol for "My lips are sealed."

A common, and hazardous, reason that legacy plans often don’t succeed is a lack of communication and trust. Not communicating a plan early on can create a rift between generations, especially if it is different than adult children might expect or incorporates other people and organizations that come as a surprise to heirs.

I’ve seen individuals have great success by bringing their adult children – who are in their 20s and 30s – into the conversation to establish the communication early on. If sharing monetary figures is uncomfortable, focus on the overall, high-level strategy instead, reviewing timing, familial values and what the plan seeks to accomplish. Open communication can mitigate negative feelings, such as distrust or confusion among family members, allowing for a more successful transfer.

3 of 4

Inadequate preparation

A yellow road warning sign reads "Oops!"A yellow road warning sign reads "Oops!"

Another reason families don’t succeed in transferring wealth is inadequate preparation among intended heirs. The ability to get individual family members on board with defined roles can be challenging, but it can alleviate a lot of potential headaches and obstacles down the road.

I frequently work with clients to coordinate a Family Alignment Day, where we review the vision and values of the plan and make sure everyone is on the same page. From there, we think through what everyone’s contribution to the plan can be – for example, if one family member is highly organized, perhaps they take control of coordinating family meetings to oversee the plan and ensure it remains on course to meet objectives on an annual basis.

4 of 4

Overlooked essentials

Looking through a magnifying glass at a $100 dollar bill hiding in grassLooking through a magnifying glass at a $100 dollar bill hiding in grass

While a broad bucket, the final reason plans don’t succeed is because of mistakes, such as overlooking tax implications or legal issues.

Enlist the help of professionals and create an “A-team”— composed of specialists, such as a financial adviser, tax professional and estate planning attorney — who can work in tandem to ensure the plan will meet its intended goals. For example, from a tax standpoint, professionals should flag upcoming legislative changes, as they could justify altering the plan. One instance of this: Many provisions in the Tax Cut and Jobs Act of 2017 will sunset after 2025, specifically impacting income tax rates and brackets, and estate and gift tax exemptions. 

Whether creating a legacy plan today, or as part of the millions of households in the Great Wealth Transfer that will establish plans soon if they haven’t already, preparation and flexibility are keys to wealth transfer success. Set up an accommodative plan early on, have open communication with family members, and review philosophies and values to make sure everyone is on the same page. This will leave loved ones with the ability to understand, respect and meaningfully execute the legacy plan’s objectives.

Senior Financial Adviser, Vanguard

Julie Virta, CFP®, CFA, CTFA is a senior financial adviser with Vanguard Personal Advisor Services. She specializes in creating customized investment and financial planning solutions for her clients and is particularly well-versed on comprehensive wealth management and legacy planning for multi-generational families. A Boston College graduate, Virta has over 25 years of industry experience and is a member of the CFA Society of Philadelphia and Boston College Alumni Association.

Source: kiplinger.com

How Does a Spendthrift Trust Differ from an Asset Protection Trust?

My clients often want to protect their legacy from their own children’s poor planning or misfortune. A trust offers protections many beneficiaries cannot obtain for themselves from creditor claims, untutored investment choices, overspending and unnecessary taxation. These protections, especially from the beneficiary’s own extravagance, fuel the greatest interest in asset protection provisions.

Black’s Law Dictionary defines a “spendthrift” as: “One who spends money profusely and improvidently; a prodigal; one who lavishes or wastes his estate.” A “spendthrift trust” is: “A trust created to provide a fund for the maintenance of a beneficiary and at the same time to secure the fund against his improvidence or incapacity … and places it beyond his creditor’s reach.”

Most trusts include a “spendthrift provision” regardless of any anticipated, or unanticipated, profligacy by the beneficiaries and are, therefore, spendthrift trusts. Without the inclusion of such a provision, the assets in a trust are statutorily available to creditors. In fact, the law favors the protection of creditor claims and has provided the means to challenge a debtor’s “fraudulent conveyance” of assets into an irrevocable trust since the Statute of 13 Elizabeth in 1571. The present form of that law is theUniform Voidable Transaction Act (UVTA), which has been adopted in some form in 44 states, Washington, D.C., and the U.S. Virgin Islands.

The gist of the UVTA may be summed up by these two statutory excerpts:

  1. “Unless prohibited under the Act, a court may authorize a creditor to invade a beneficiary’s trust and charge against all present or future distributions.”
  2. “A transfer made or obligation incurred by a debtor is fraudulent … if the debtor made the transfer or incurred the obligation…[w]ith actual intent to hinder, delay or defraud any creditor of the debtor.”

Each state’s law on spendthrift trusts is different, but Tennessee law, one of the leading states in the domestic asset protection trusts, provides a useful example. See my discussionof liability limits here in favor of balancing protections for creditors and debtors before you judge the use of spendthrift trusts.

What a spendthrift trust can do

In Tennessee, a spendthrift provision is valid to restrain both voluntary and involuntary distributions of a beneficiary’s interest in the trust, even if the beneficiary is a trustee, simply by stating that the interest is held subject to a “spendthrift trust,” or words of similar import. A beneficiary’s creditor may not reach the trust assets or force a distribution of a beneficiary’s interest if the trust includes a spendthrift provision.

Here is an example of a spendthrift provision: No beneficiary may assign, anticipate, encumber, alienate or otherwise voluntarily transfer the income or principal of any trust created under this trust. In addition, neither the income nor the principal of any trust created under this trust is subject to attachment, bankruptcy proceedings or any other legal process, the interference or control of creditors or others, or any involuntary transfer.

A spendthrift trust must be irrevocable (I’ve also writtenhere previously about what “irrevocable” means in trust law today). A revocable or living trust is subject to the settlor’s creditor’s claims even if it includes a spendthrift provision or references an intent to be subject to one. But if a settlor funds an irrevocable gift trust for his spouse and children, or his living trust becomes irrevocable at his death, with a spendthrift provision each beneficiary is both restrained and protected regarding potential and retained creditors.

Protections of a spendthrift trust

First, the protections. The beneficiary’s share of the trust’s income and principal cannot be forced out by any of these possible creditors in the event she fails to meet an obligation to pay:

  • A judgment creditor, i.e., a person she injures through some negligence, such as an auto accident, a failure to maintain property, some malfeasance or malpractice, or some criminal conduct;
  • A property settlement order in a divorce or other dissolution action;
  • A lender for a personal debt, i.e., student loans, mortgages, home improvement lines of credit, promissory notes, etc.; or
  • A judgment in bankruptcy court.

However, some states will allow a charge against mandatory income distributions and even against discretionary distributions that the trustee chooses to make to recover unpaid spousal maintenance and child support payments.

Limitations on a spendthrift trust

Now, the limitations. The beneficiary cannot assign the income or principal of the trust or proffer trust assets as collateral or security for any debt he may incur or to secure a loan for any purpose. In other words, the assets of a spendthrift trust are not in any way owned by a trust beneficiary.

However, this line can be blurred if the trust empowers a beneficiary to:

  • Withdraw or distribute income or principal from the trust to himself or for his benefit without the consent of an adverse party or subject to an ascertainable standard, or
  • Withdraw or make a distribution that discharges a legal obligation, such as the support of a minor or other legal dependent.

If the settlor wants to give the beneficiary that kind of control over trust assets, but still qualify the trust for creditor protections, then such distributions must:

  • Be limited to funds used for health, education, maintenance and support, or
  • Require the approval of one or more other trust beneficiaries (considered adverse because any funds to one beneficiary reduce funds available to other beneficiaries).

How a domestic asset protection trust differs

A domestic asset protection trust (“DAPT”) is a completely different concept. The DAPT concept is that a settlor can fund an irrevocable trust with himself, as well as his spouse and descendants, as current beneficiaries and that the trust will be beyond the reach of any of his, his spouse’s and the trust beneficiaries’ creditors.

In Tennessee, a DAPT is controlled by the Tennessee Investment Services Trust Act of 2007 (and is called a “TIST”). The TISTqualifies as a DAPT because it is irrevocable, includes a spendthrift provision, is administered in Tennessee by a resident trustee and the settlor transfers his property to the TIST.

Tennessee law protects the TIST from any action to attach TIST property unless:

  • The creditor’s claim arose either before or after the qualified disposition to the trust,
  • The creditor can prove that the qualified disposition was made with actual intent to defraud that specific creditor, and
  • The action is brought within a very limited time period after the qualified disposition.

The settlor can establish a rebuttable presumption setting the date the assets were transferred to the trust by executing a “qualified affidavit” before the qualified disposition that states that the settlor:

  • Has full right, title and authority to transfer the assets to the trust;
  • Will not be insolvent after the transfer;
  • Does not intend to defraud a creditor by transferring the assets to the trust;
  • Does not have any pending or threatened court actions or administrative proceedings against him, except those he identifies on an attachment to the affidavit;
  • Does not contemplate filing for bankruptcy; and
  • Is not transferring assets to the trust derived from unlawful activities.

Simply put, a spendthrift trust is widely available under almost every state law and protects assets the settlor places in trust for her loved ones, but not herself. A domestic asset protection trust is available in many fewer states (including Tennessee, Delaware and 17 others) and seeks to protect assets the settlor intends for his own use, as well as for his family. Both trusts only limit a creditor claim if the settlor had no intent to avoid a known creditor.

One additional important note: Usually the creditor must prove there was an intent to defraud that particular creditor with clear and convincing evidence. And this is why almost every trust includes a spendthrift provision.

Senior Vice President, Argent Trust Company

Timothy Barrett is a senior vice president and trust counsel with Argent Trust Company. Timothy is a graduate of the Louis D. Brandeis School of Law, 2016 Bingham Fellow, a board member of the Metro Louisville Estate Planning Council, and is a member of the Louisville, Kentucky and Indiana Bar Associations, and the University of Kentucky Estate Planning Institute Program Planning Committee.

Source: kiplinger.com

What Happens to Your Digital Assets When You Die?

Not very long ago, owning a personal computer was a novelty. Today we all interact personally and professionally using desktop or laptop computers and access the internet by way of cellphones. The constant presence of digital information in our lives has led to social and economic changes that would have been hard to anticipate only a few generations ago.

For those of us born before the Reagan administration, using a cellphone and relying solely on a computer to communicate and do daily financial transactions seemed as futuristic as The Jetsons. Now, our children and grandchildren likely can’t imagine a world without a high-speed digital connection.

5 Reasons Everyone Should Plan for Their Digital Assets

Not everyone is motivated to care about what happens to their digital assets after they’re gone. But here are a few reasons why you should:

  1. Certain social media platforms will automatically mark a deceased user’s profile as “memorialized,” notifying other users of her death and alerting unscrupulous identity thieves to begin scanning for online accounts or information. Unless you exercise any option available to you for selecting a person to close your account under that provider’s user agreement, or your will provides your executor the express authority to manage, access or delete your profile, your social media account may be closed only at the discretion of the platform.
  2. Cryptocurrencies, blogs, web domain names, videos and pictures stored in the cloud or an online medium may have both intrinsic and extrinsic value and may be forever lost unless you properly plan for transferring this type of property.
  3. Do not assume that you own everything stored digitally. Account credits, frequent flier points and cryptocurrency are typically transferable to your heirs. Movie and music libraries, phone apps and email accounts are typically not transferable, since you may not own the content and are only a permitted user. You and your estate planning attorney should review any user agreements to protect your rights concerning these accounts.
  4. A non-fungible token (NFT) is a way of owning the original version of a digital file, such as a piece of art, a GIF, a video or an audio recording. You can think of the NFT as a secure digital lockbox holding a unique digital file. NFTs are logged using a digital ledger called blockchain, which provides a secure way of verifying authenticity and ownership. However, like cybercurrency, NFTs require a password or a distinct key to gain access, and both the NFT and the underlying digital file can be lost if an owner’s trustee or executor doesn’t have that information.
  5. In our economy, many people operate businesses solely online, and your successors’ access to customers and funds in PayPal or similar providers may be delayed or denied without proper planning.

What Happens When You Die with a Will (or Without One)

As many of us try to adapt to the reality of our new digital existence, estate and financial planning have evolved as well. For most of the 20th century, it was not complicated to transfer property or assets to your heirs following your death or permit management of your financial affairs in the event of your incapacity. Preparing a will or living trust and a durable power of attorney is still an important part of proper planning. A will or a living trust gives your executor or trustee instructions concerning payment of your debts and taxes and allows you to direct the distribution of your property to your heirs or legatees.

If you die with a will, the probate court in your state will approve your selection of an executor. If you die without a will, the court will appoint an administrator to pay your debts and final expenses and distribute your remaining assets to your heirs or legatees. A trustee’s responsibilities are essentially the same, with little or no court involvement.

Your executor’s first task is to create an inventory of your assets. Historically, this was done by checking your mail for any account statements sent by banks, savings institutions and investment advisers. Creditors were identified in the same way.

How Old Estate Planning Rules Fall Short Today

But the ways of old no longer work in our modern digital world. Account statements and notices arrive in an inbox — not a mailbox — and sometimes property takes the form of cyber-currency and non-fungible tokens coded in blockchain.

Until only a few years ago, a deceased person’s executor, trustee and even family would be prohibited by computer privacy laws from accessing the person’s email, digital account statements and any property that was held on computer servers in another state or in a foreign country. In a well-publicized case from a few years ago, the parents of a soldier who died in combat were denied his last email messages home because he did not designate a person to direct his email after he died.

Online service providers, such as Facebook, Google and Yahoo, have worked with state lawmakers to create uniform laws governing access to people’s digital information following their death or potential incapacity. According to the National Conference of State Legislatures, at least 48 states and the U.S. Virgin Islands have enacted laws addressing access to email, social media accounts, microblogging sites, website accounts and other electronically stored assets upon a person’s incapacity or death.

The Bottom Line on Your Digital Assets

Essentially, if your will or your durable power of attorney does not directly address control of your digital assets, your family, executor or trustee may be limited by what an online service provider permits under the terms of use or similar user agreement that you accepted when you opened your account.

Digital technology will continue to develop rapidly to transform our present ideas about property rights and how we conduct our personal, business and financial lives. State law will likely not compensate for these changes as quickly.

It’s important for all of us to begin to see the often-overlooked presence of digital assets in our lives and estates and to start a conversation about how these new forms of property, their use and ownership should not be neglected.

Vice President/Legal Counsel, Argent Trust Company

Jim Ferraro is a vice president and trust counsel in the Shreveport, La., office of Argent Trust Company. Ferraro is a 2003 graduate of the University of Missouri at Kansas City School of Law, past president of the family and the law section of the Kansas City Metropolitan Bar Association, and is a member of the Tax and Estate Planning Council of Shreveport.

Source: kiplinger.com

Key Differences: Living Will vs. Last Will

Key Differences: Living Will vs. Last Will – SmartAsset

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Planning for the later years of your life is often an emotionally taxing experience. However, it’s often scarier to go into the end of our life without a plan. Of course, a plan requires the right legal documents. A living will and a last will may sound like they cover the same territory, but they’re very different; knowing how will help you pick the one that’s best for you or decide you need both. So, with that in mind, here are the main differences between a living will vs. a last will and why they might be useful to you.

Just as important as arranging an estate plan is having a financial plan to maximize the growth potential of your investments. That’s where a financial advisor can be immensely useful.

What Is a Living Will?

A living will is a document that contains the writer’s medical wishes in the event that she or he cannot communicate those decisions. Instances where a person might need a living will include degenerative illnesses or physical incapacitation. So, a living will sets down the wishes of the writer as instructions for the person’s medical and end-of-life care in such scenarios. It takes effect the moment the writer loses the capacity to communicate.

Doctors will refer to your living will to decide your quality of care and which life-sustaining measures to take. For example, you may put a do-not-resuscitate directive in your living will. Other decisions often include the use of breathing or feeding tubes, palliative care or organ donation. It is possible to change or revoke a living will as long as you are capable of doing so.

What Is a Last Will?

A last will and testament is most commonly referred to as a last will. It is a legal document that delegates the distribution of an individual’s property after death. It may also select a guardian for any minor children.

A pre-selected individual, known as the executor, carries out the will’s instructions. That person manages the distribution of assets to your beneficiaries per your wishes.

There are a few types of wills, and the right one depends on your needs. A simple will is the basic form, and it saves your estate distribution and designates care for any minors. However, this type is typically insufficient if you have a large or complex estate.

Married couples often draft joint wills to simplify their estate since it combines their planning into one mutually agreed upon document. When one spouse dies, the other is the sole beneficiary. After the second spouse passes, they usually hand down the remaining assets to their children.

Wills can also differ based on how they’re created. A holographic will is typically handwritten and does not require any signatures other than the owner or testator. There are also oral wills which the individual verbally dictates, usually because they are too ill to write or type it.

Each state has its own rules regarding a will’s legitimacy, and many don’t even recognize holographic or oral wills, so it’s essential to inform yourself on those regulations.

Living Will vs Last Will: Which One Do You Need?

Since a living will and last will function differently, you’re safest when you have both. A living will takes effect while you’re still alive, whereas a last will takes effect after you die. Furthermore, a living will ensures you receive the medical care you desire, and a last will ensures your estate is handled accordingly. So, both cover vulnerable times in you and your family’s life and revolve around different situations.

Even still, certain people are more likely to need one or the other in specific situations. Those going into surgery or who have degenerative diseases, like Alzheimer’s, are most recommended to have a living will in place. If you have minor children or a complex estate, you will need a last will.

Living Will vs. Last Will: How to Create Each Will

Each state varies in its requirements to recognize legal documents. So, researching what your state demands is the safest way to ensure your documents are valid in the eyes of the law.

There are online options that are cheap and relatively stress-free to create; however, they often lack nuance. So, if you have a particularly complicated situation or require a lot of detail in either a living will or last will, it might not address all your requirements.

Alternatively, you can speak with an estate planner or other financial professional. While they may not be as affordable as the online route, a professional can guarantee your document is valid in your state and catered to your specific needs.

The Takeaway

Both living wills and last wills are vital documents for a smooth transition into your later years and even your eventual passing. They preserve and enforce your wishes when you no longer can. With both in place, your loved ones won’t have to make snap decisions in high-stress situations or face unnecessary legal fees to figure out what you wanted. Instead, you can lay it all out for them. If you think a living will or a last will are right for you, consider speaking with an estate planner who can help you get the process started. If you already have one in place, it also might be the right time to check to see if should be updated.

Estate Planning Tips

  • Estate planning on your own can prove a challenge. However, a financial advisor can make that process easier for you. Plus, finding one doesn’t have to be stressful either. SmartAsset’s free financial advisor match-up tool gives you up to three local professionals to contact in just five minutes. If you’re looking for experienced help, get started now.
  • While you’re considering professional help, it’s always good to stay informed on your own as well. An estate tax is part of estate planning, so make sure you know whether your state has an estate tax or if you’re subject to the federal version.

Photo credit: ©iStock.com/shapecharge, ©iStock.com/Duncan_Andison, ©iStock.com/kupicoo

Ashley Chorpenning Ashley Chorpenning is an experienced financial writer currently serving as an investment and insurance expert at SmartAsset. In addition to being a contributing writer at SmartAsset, she writes for solo entrepreneurs as well as for Fortune 500 companies. Ashley is a finance graduate of the University of Cincinnati. When she isn’t helping people understand their finances, you may find Ashley cage diving with great whites or on safari in South Africa.
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How to Make a Will for Free

How to Make a Will for Free – SmartAsset

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Estate planning can be an overwhelming process, emotionally and mentally. The prices to work with a financial professional certainly don’t help either. These days, it’s possible to find free templates and do-it-yourself kits online that make estate planning more affordable. While after-life planning can be complicated, you may not need to spend money on an estate planning attorney. If your estate is simple, it might be worth investigating how to make a will for free instead. A financial advisor can help you sort through your options for making an estate plan.

Identify a Free Will Template

Your first step is to choose how you’ll obtain the template for your free will. You can either search online for resources that provide a template or work through a reputable legal resource. Often you will find that online services charge little to nothing for a will template, although that price can increase if you want a package with more documents.

Online resources like Freewill.com, a nonprofit site, can also offer forms for advance healthcare directives and durable financial power of attorney. You can alter these forms when you want, but keep in mind you’re responsible for destroying or editing the previous version if you do.

Decide How You Would Like to Distribute Your Assets

Having the form is one thing, but you need to reflect on your distribution wishes carefully. Your will should accurately reflect them. That also requires you to be aware of your assets. So, familiarize yourself with everything that comprises your assets and think about how you want them handled. When you detail the allocation in your will, you should set specific instructions for your beneficiaries. This measure will help your loved ones avoid court costs and in-fighting that can result when a will is too vague.

You also have the option to include varying levels of contingency in your will. For example, you can choose your spouse to receive a certain percentage, but specify that your particular friend will receive it if they don’t outlive you. You can then create a chain of succession. This allows you to minimize updating your will.

Select Someone to Fulfill Your Wishes

When you draft a will, you need to select an individual to execute it. The person will be in charge of seeing your wishes communicated and carried out. The title of this person can change depending on the state. Although you will see them typically called executors, they may also be titled administrators or a personal representatives. Your executor should either be a close, trusted individual in your life or a professional fiduciary.

That way, you can ensure your estate will be administered appropriately and the person you’ve left to do it will have your best interest in mind. If you choose someone close to you, make sure they can handle the emotional stress that may come with the position. So, speak to your candidate(s) beforehand about your expectations and the contents of your will.

Make Sure Your Will Fulfills All Legal Requirements

Each state demands different requirements to recognize your will. These guidelines can include recognized formatting, minimum asset distribution and rules regarding your witnesses. A will can be made invalid for numerous reasons, so it’s important to be careful when drafting yours.

For example, if you or any of your witnesses are deemed mentally incompetent, that can invalidate your will. Or, you if have multiple wills, they can come into conflict with one another.

Share Your Wishes With Your Family

If your will’s executor is someone from your personal life, you should talk to him or her about your distribution wishes. Similarly, you’ll want to talk with your family about your plans as well. Since they are the ones who will have to deal with your loss and the estate as your beneficiaries, they should know what waits. You should also communicate to them where you keep copies of the will.

If your original copy is with an estate planning professional or attorney, have their contact information accessible to your spouse or executor.

Is a Free Will Sufficient for My Needs?

If your estate and its distribution are very straightforward, a free will might suit your needs. As long as you research that the template works with your state regulations, you shouldn’t experience any legal ramifications. However, the more complicated your will needs to be, the less suitable it is for a free will format.

If you have a complicated family background, such as children from multiple marriages, have a diverse investment portfolio or generally have complex distribution wishes, a free will likely won’t work for you. While they are affordable and accessible, they’re not customizable to your needs. If your will is not written correctly, has gaps or is vague, your family may have to contest it in probate court. This would lead to legal costs and emotional damage that a will is supposed to prevent. However, don’t be afraid to bring a free will you’ve worked on to your estate planner or attorney. That document can be a good place to start.

The Takeaway

Free wills are a valuable resource for those with simple estates. They can even be valuable starting points for someone new to estate planning. However, they have their limits. An individual with complex distribution wishes will find that a free will doesn’t accommodate all their specific needs. Even more, if it isn’t completed properly or has gaps, it might become invalid, which could lead to probate court. When you write your will, you want to finish it knowing that it does exactly what it’s supposed to do: protect you and your loved ones. Your will’s validity influences that.

Estate Planning Tips

  • Consider working with a financial advisor as you create or modify your estate plan. Finding one who’s ready to address your needs doesn’t have to be hard. With SmartAsset’s free matching tool, you can locate financial advisors in your area who can help you achieve your financial goals. If that sounds like the help you need, get started today.
  • A key part of estate planning is assessing your need for life insurance: how much and what type of policy. A life insurance calculator can give you a quick estimate of what you should consider buying.

Photo credit: ©iStock.com/fizkes, ©iStock.com/ridvan_celik, ©iStock.com/yongyuan

Ashley Chorpenning Ashley Chorpenning is an experienced financial writer currently serving as an investment and insurance expert at SmartAsset. In addition to being a contributing writer at SmartAsset, she writes for solo entrepreneurs as well as for Fortune 500 companies. Ashley is a finance graduate of the University of Cincinnati. When she isn’t helping people understand their finances, you may find Ashley cage diving with great whites or on safari in South Africa.
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How Much Does a Living Will Cost?

How Much Does a Living Will Cost? – SmartAsset

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Confronting our health and what might happen to us someday is not an easy task. Even though estate planning is emotionally challenging, it’s a necessary step to protect yourself. Not only that, without any plans, your loved ones might face unnecessary difficulties. Dealing with the assets alone can be a struggle. You wouldn’t want them worrying about making medical decisions on top of that. So, if you want to prepare for the future, it might be the right time to ask, “How much does a living will cost?”

One of the best resources for estate planning, especially end-of-life planning, is a financial advisor.

What is a Living Will?

A living will refers to a legal document that records your medical, long-term and end-of-life care choices. However, it only comes into play when you can no longer communicate your decisions to your doctors or loved ones.

Unfortunately, there are a variety of scenarios that may require a living will. For example, if you have a degenerative disease or sustain major brain trauma, you likely won’t be able to advocate for yourself. To prepare for that, individuals make a living will while still healthy and sound of mind. Some frequently mentioned directions people put in this document include ventilators, medication and resuscitation.

Factors that Impact Living Will Costs

Your estate attorney will take special care to customize your living will to fit your needs. Those specifications, however, and your circumstances can shift the price needed to make the document. Some of the factors that influence the overall cost include:

  • Location – Attorneys that work in urban areas tend to cost more than those based in suburban or urban spaces.
  • Professional Experience – Lawyers and law firms that specialize in estate planning will cost more.
  • Directive Complexity – The larger and more complicated your living will, the more expensive it will be to complete.

How Much Does a Living Will Cost?

When researching which estate planning attorney to work with, you should know the basic payment system they will use. If you know ahead of time, you can prepare accordingly. Lawyers tend to use either one of two ways: flat fees or hourly billing. However, you also have the option of do-it-yourself (DIY) living wills.

DIY Living Wills

You might be considering ways to avoid any high, professional costs in the first place. If so, a DIY living will is a cost-effective method. You can search online or visit certain stores to get a basic, pre-made form. The only actual cost, then, would be the notarizing price, which you can expect to be only around $10 to $15. That is unless you want a more complicated pre-made form or will-making software. In that case, certain websites might begin to charge you, although it will still be a low cost compared to professional help. The software typically runs from $20 to $100.

However, you should also know that writing your own legal documents comes with its complications and some risks. Your state likely has rules regarding the document’s legitimacy that you may not know. Any mistakes you make hoping to save money may end up costing you more in the long run. Also, a basic will drafted by an attorney is comparable in price to the cost of higher-end software. So, you may be financially safer to choose professional guidance.

Flat-Fee Living Wills

Once you start working with an attorney, you’ll find that they typically have one of two payment structures. A flat flee works like how it sounds. Once you decide to work with an estate planner, they will ask for one “flat” payment. The cost of that payment will depend on the factors mentioned above: location, attorney experience and and the number and type of documents needed. You can expect a low range of $300, with the higher prices easily exceeding $1,000.

However, a flat fee can be beneficial despite how shocking that price tag might be. It demands less work on your attorney’s part since they won’t have to keep track of hours and can just focus on the living will’s assembly. Also, you get to relax once the process has started, knowing you’ve done your part.

Hourly Payment Structure Living Wills

An alternative to the flat fee is hourly billing. This format will also heavily depend on the circumstances. Again, lawyers in high-traffic areas will likely charge more. So, if you’re in the city, you’ll probably find hourly rates above $300. Outside that area, it’ll drop to around $150 an hour.

Remember, a firm or lawyer’s experience and your living will’s specializations may also drive up those prices.

Benefits of Hiring an Attorney

While the online world is a convenient one, it may not provide for all your needs. DIY legal documents often cost less than working with a professional, but that’s because they’re not customized. The form comes as is ,and you simply fill it out to the best of your abilities.

Furthermore, the benefit of working with a person is exactly that. You can have a dialogue with your estate planning attorney, which is more direct than typing questions into a search engine. You can ask your attorney any concerns you may have about a living will or other legal documents. Also, the document they may for you will cater to your needs.

The Takeaway

Living wills are an important step for any individual looking into end-of-life medical and financial planning. The more vulnerable you are, the more essential they become too. If you think you might need to include a living will in your future, shop around for your best options to make one. If you have straightforward wishes, a DIY living will might be enough for you. In contrast, it may be worth speaking to a professional estate planning attorney if there are several complications. Either way, as long as you have a legal living will, you can be sure you and your family are cared for.

Estate Planning Tips

  • A key part of estate planning is figuring out how much you will have to live on. That’s where a free, easy-to-use retirement calculator can be invaluable.
  • Consider working with a financial advisor as you do estate planning. The great thing is that finding a financial advisor doesn’t have to be difficult. Using SmartAsset’s financial advisor matching tool, you can connect with professionals in your area. It only takes minutes for you to have the expert help you need, so get started today.

Photo credit: ©iStock.com/GCShutter, ©iStock.com/designer491, ©iStock.com/zimmytws

Ashley Chorpenning Ashley Chorpenning is an experienced financial writer currently serving as an investment and insurance expert at SmartAsset. In addition to being a contributing writer at SmartAsset, she writes for solo entrepreneurs as well as for Fortune 500 companies. Ashley is a finance graduate of the University of Cincinnati. When she isn’t helping people understand their finances, you may find Ashley cage diving with great whites or on safari in South Africa.
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TotalLegal Review: Pros & Cons

TotalLegal Review: Pros & Cons – SmartAsset

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TotalLegal is a company that offers consumers the opportunity to create quality legal documents for a variety of needs. With regards to estate planning, the website allows users to create a last will and testament, power of attorney, living will and medical power of attorney. It also offers a full plan subscription so that users can connect with attorneys for services as well. If you’re looking to begin the process of creating a legal document with TotalLegal, you just have to begin by answering an online interview. Once you create an account you can log in later to revise or download your documents.

If you’d rather have a professional personally help you with your entire estate plan, consider working with a local financial advisor.

TotalLegal Overview
Pros
  • Relatively inexpensive; bundling can help save more
  • Variety of legal documents available
Cons
  • Relatively clunky interface
  • Pricing tiers can be a bit hard to follow
Best For
  • Availability of different kinds of legal documents

TotalLegal: Services & Features

TotalLegal’s services and features are relatively inexpensive but also relatively wide-ranging. In the way of end-of-life and estate planning, the website offers the option of creating a last will and testament, a power of attorney, a living will and a medical power of attorney. If you wanted to create a will, for example, you’d complete the online interview questions, print the document yourself or opt to receive it by mail and then follow the instructions to sign in your state.

Besides this, users can create other legal documents that might be useful for setting up other parts of their lives and assets. Such documents include a bill of sale, name change form, a quitclaim deed, a warranty deed, a rental or lease agreement or a promissory note. TotalLegal also offers business products such as LLC formation and incorporation forms.

For users who wish to pay for a bundle of services instead of buying specific forms a la carte, the website offers a full TotalLegal™ Plan. By subscribing to this plan, users can not only create the aforementioned legal documents, but they can also receive free and discounted legal services from attorneys from the Legal Club of America. Free legal services from these attorneys include consultation, attorney-reviewed documents, free and annually updated will, small claims court service, government assistance programs and attorney letters and calls. Discounted attorney services through this subscription include traffic defense, simple will with trust, Chapter 7 bankruptcy, real estate closing and more. TotalLegal™ offers a useful document storage vault service too, through which subscribers can store and organize copies of all signed legal documents in a secure way, and reprint any document when needed.

TotalLegal: Pricing

TotalLegal’s Fee Structure
Membership Tiers
  • Tier 1: No subscription; documents purchased individually. Prices range from $14.95 to $19.95 for each legal document for estate planning
  • Tier 2: TotalLegal™ Plan – $89/year or $9.95/month
Extra Features
  • Tier 1: Other kinds of documents available to purchase individually; prices vary
  • Tier 2: All legal documents, free and discounted legal services from attorneys, online document storage vault service

For consumers who wish to simply create a last will and testament or other such estate planning document, the forms are relatively inexpensive – at less than $20 for any of those. However, if that’s all that you need, you might be better off searching for another company (such as FreeWill, for example), whose services allow you to create this one document for free.

For those who have more wide-reaching needs and who may need to cover other concerns about property, medical power of attorney or business forms over a longer period of time, the a la carte payment method may begin to add up. Instead of that approach, the company’s TotalLegal™ plan offers a fairly affordable option – at less than $10 per month or less than $90 per year – for the ability to create all of the estate planning, business and other legal documents mentioned above, as well as legal services and secure online document storage. If subscribers to this membership require further attorney services, they will have to pay for them, but can rest assured knowing that they’ll save at least 50% on them, from creating a simple will with a trust to filing for Chapter 7 bankruptcy.

TotalLegal: User Support

With regards to estate planning, TotalLegal allows users to create a last will and testament, living wills and/or a power of attorney. On the company’s website, users must fill out interview questions that then result in the creation of the form. The questionnaire form is divided into parts and users can track their progress so that they know how many sections remain.

If you need assistance while filling out a form or navigating the site, the company has a very thorough help center page where users can find the answers to some frequently asked questions addressing anything from troubleshooting and technical issues to definitions of legal terms and breakdowns of specific rules and concepts.

If you’re looking for immediate support from customer support representatives, TotalLegal has a contact page where it provides an email address and phone number that users can call during most business hours. Inquiries directed to the company through these methods, however, must be of a non-legal nature.

If you need to enlist the services of a professional attorney or even a professional financial advisor, you should do so separately.

TotalLegal: Online Experience

TotalLegal does not have any further mobile or online platforms available through its service, as all the final documents will be available to users once they finalize the questionnaire process on the site. There is no app or other software that a user would need to download.

The website’s interface is relatively simple, but many users may (and have reported to) feel its design and user experience to be somewhat clunky. This has become a point of struggle for many users in relation to understanding the pricing model, which can be hard to piece together unless you spend some time on the website first to parse out the different tiers. On a related note, other users have also pointed out the fact that TotalLegal could be more inclusive, as the website currently only generates documents with the marital designations of “wife” and “husband,” not yet providing documents for same-sex marriages.

How Does TotalLegal Stack Up?

Comparing FreeWill to Other Services
Service Pricing Features Accessibility
TotalLegal
  • $14.95 – $19.95 for legal documents
  • TotalLegal Plan subscription $89/year or $9.95/month
  • Create documents
  • With subscription: Legal services from attorneys
  • With subscription: Document storage vault service
FreeWill
  • $0 / Free for individuals
  • Last will & testament, durable financial power of attorney, advance healthcare directive, charitable contributions
  • No legal services or support
Tomorrow app
  • Mobile app free for families
  • Free for employees covered by employers who buy Tomorrow Plus plans
  • $39.99/year for Tomorrow Plus plan not through employer
  • Mobile creation of estate planning documents, such as will, trust, healthcare directive, power of attorney
  • App allows users to connect with family members and make decisions together
  • No legal services or support
  • Mobile app

The biggest differences TotalLegal has over competitors is its offerings of documents outside of simple estate planning documents, as well as the ability for consumer to connect to Legal Club of America attorneys for further insights.

Bottom Line

Overall, TotalLegal offers a wide selection of legal documents that include business forms and other forms aside from basic estate planning needs. Its individual form offerings are useful if a consumer wishes to buy a few select forms at once, but might not be worth the money if those particular forms are available for free elsewhere. Where TotalLegal is the most cost-effective for users is through its TotalLegal™ Plan, which, aside from necessary legal documents, provides the opportunity for consumers to receive a variety of legal services from attorneys (at different additional price points, where applicable) and secure document storage. This can be a great one-stop shop for all of your estate planning needs as you make sure you have what you need squared away for the future.

Estate Planning Tips

  • If you’re seeking more detailed advice instead of or in addition to your own estate planning steps, consider reaching out to a financial professional. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool connects you with financial advisors in your area in five minutes. If you’re ready to be matched with local advisors, get started now.
  • Estate planning is all about looking ahead and mapping out your plan as best as possible. If you’re going the DIY route, make sure you’re aware of the possible financial consequences. Read more about the dangers of DIY estate planning and five estate planning mistakes you can’t afford to make.

Photo credit: TotalLegal

Nadia Ahmad, CEPF® Nadia Ahmad is a Certified Educator in Personal Finance (CEPF®) and a member of the Society for Advancing Business Editing and Writing (SABEW). Her interest in taxes and grammar makes writing about personal finance a perfect fit! Nadia has spent ten years working as a seasonal income tax assistant, researching federal, state and local tax code and assisting in preparing tax returns. Nadia has a degree in English and American Literature from New York University and has served as an instructor/facilitator for a variety of writing workshops in the NYC area.
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Key Differences: Living Will vs. Power of Attorney

Key Differences: Living Will vs. Power of Attorney – SmartAsset

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Hard choices wait around every corner as you age, but some of the most difficult ones are about your own care. Without a plan in place, you might not be able to convey your wishes to those around you, leaving loved ones scrambling to make the right decision. Fortunately, there are several ways you can ensure your choices for your medical and end-of-life care are understood. A living will and power of attorney are two of these ways. But what’s the difference between them and how do you know which one is right for you?  If you’re beginning to plan your future care, here are the key differences between a living will vs. a power of attorney.

End-of-life planning includes properly arranging your financial affairs, which is where a financial advisor can be immensely helpful.

What Is a Living Will?

Living wills have several names, such as healthcare directives, instruction directives and declarations. So, you may see it under various titles, but its purpose remains the same. A living will is typically a written statement that ensures any medical or healthcare-related decisions you’ve made are carried out. It only comes into play when or if you can’t advocate for yourself or vocalize those wishes.

For example, you may suffer physical trauma or have a degenerative disease like Alzheimer’s. Both of these situations can lead to lost brain activity and incapacitation. So, you’ll need something in place beforehand that protects your choices regarding long-term or end-of-life medical care. Your living will might cover some decisions, including resuscitation, feeding tubes, assisted breathing and other life-prolonging measures. It may also be possible to put in instructions based on your religious or philosophical beliefs.

Since a living will only comes into play while you’re alive (but incapacitated), it ends when you die.

What Is a Power of Attorney?

Like a living will, a power of attorney (POA) is another important document that protects your interests when you cannot. However, it uses a different method to accomplish that. A power of attorney authorizes a trusted individual that you (the principal or grantor) have chosen to make decisions on your behalf. Although you may also see them with titles like proxy, surrogate and attorney-in-fact, this person is often called the agent.

Essentially, a power of attorney does not include a written guide on your preferred care but picks someone to make those choices when they arise. However, unlike a living will, a POA comes in more than one form.

Other Types of Powers of Attorney

A general power of attorney can have a broad range of power depending on your needs. For example, if you leave the country for an extended period, but you have business ventures or investments to take care of, you might give someone power of attorney over them. Specific situations might call for a specialized version of the document. You can alter when the document takes effect if you make it a durable or springing power of attorney.

A durable POA activates the minute you sign the document. After that, the agent assumes his or her position and retains it, even if you become incapacitated, until your death. In contrast, a springing POA only takes effect after you can longer advocate for yourself.

On top of activation, you can also shift the intent by drafting a power of attorney in financial situations or a power of attorney for healthcare. Either way, the agent makes decisions on your behalf. A financially focused POA can allow someone to pay bills, operate your business or even move assets, but they always have to act in your best interest.

Naturally, a POA for healthcare handles your medical care. Their duties can include accessing medical records, deciding course of care and dealing with the employment of your doctor or medical care professionals.  If you are considering a power of attorney for healthcare, it might be worthwhile to pursue a financial one as well. That way, your executor can access capital and use it to improve your quality of life.

It’s important to note that you can revoke your POA at any point; you just have to inform your attorney-in-fact and address the document. You may have to amend it or destroy it altogether, depending on your plans.

Living Will vs. Power of Attorney: Which One Do You Need?

A living will preserves your wishes in writing, while a POA empowers a person to make those decisions. Which one you need depends on your situation.

Keep in mind that each state has different rules regarding estate planning. You may find that you live in a state like Pennsylvania, which uses a document known as an advance healthcare directive. This document combines a living will and durable power of attorney for healthcare, negating the need to choose between the two. It’s also possible to determine your state’s specific requirements to make your living will or power of attorney valid.

It can be challenging to navigate this alone, so speak to an estate planner who can help you ensure your documents are legitimate. They can create a custom directive suited to your needs, which will help you avoid these issues from the get-go.

How to Choose an Agent

Generally, people choose their spouse, a trusted friend or a knowledgeable family member to act as their agent. However, you want to make sure this individual will do right by you and can handle difficult decisions. End-of-life care is an emotional topic for family members, and it can stir disagreement. So, choose an agent who will ensure your wishes are kept even amidst arguments.

Speak with your chosen executor early on. Talk with him or her about your wishes before and even after you put them into writing. The person should also receive a copy of your power of attorney once it’s written and know the location you keep yours in, which should be a secure location like a safety deposit box. You may want to consider bringing a copy to your physician and other family members, like a spouse, as well.

The Takeaway

Planning for the end of your life is a personal process and emotionally taxing. A living will and power of attorney can make it easier for you and your loved ones by handling the hard decisions beforehand. The safest route is to have plans in place to rely on for any situation. Since you can’t predict every scenario in a living will, a power of attorney can help close any gaps. So, your agent can have the living will to rely on and refer back to when they need to make real-time decisions. However, you might not need to pursue two separate documents depending upon your state.

If you are looking into a living will, power of attorney or both, research the requirements and reach out to an estate planning attorney. They can help you create a customized document suited to your medical care needs. That way, you and your loved ones can rest easy knowing that everything will be taken care of as you age.

Estate Planning Tips

  • Even though you may not need a power of attorney now, don’t wait to make a financial plan. That’s where a financial advisor can offer expert advice. Finding an experienced financial advisor doesn’t have to be hard. SmartAsset’s matching service can connecct you to several advisors in your area in minutes. If you’re ready, get started now.
  • If you take the path of a power of attorney, your agent might have to make financial decisions for you. That includes choices for your retirement accounts and 401(k). Use our free 401(k) calculator to estimate how much money your account will have by the time you retire.

Photo credit: ©iStock.com/zimmytws, ©iStock.com/AndreaObzerova, ©iStock.com/Chawich Udomsatapol

Ashley Chorpenning Ashley Chorpenning is an experienced financial writer currently serving as an investment and insurance expert at SmartAsset. In addition to being a contributing writer at SmartAsset, she writes for solo entrepreneurs as well as for Fortune 500 companies. Ashley is a finance graduate of the University of Cincinnati. When she isn’t helping people understand their finances, you may find Ashley cage diving with great whites or on safari in South Africa.
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