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What are the most important estate planning documents for married couples?

Although no two married couples are alike, certain estate planning documents are invaluable. Our Estate Planning Worksheet for Married People can help you determine your specific legal needs, but the following estate planning documents are particularly useful:

  • Living Trust. A Living Trust allows either or both spouses to transfer assets into the trust, and the trust is managed by a trustee, which may be you and your spouse as co-trustees during your lifetimes. This type of trust is not subject to probate, which means your assets may be quickly distributed to your heirs after you or your spouse pass without going through the courts. 
  • Last Will and Testament. A Will takes effect only upon your death and must pass through probate court before assets are distributed. Wills allow you to choose who will inherit your property, name a Guardian for your dependents, and specify funeral arrangements.  
  • Durable Power of Attorney. A Durable Power of Attorney names a trusted individual (called an "Agent") to manage your finances if you become incapacitated. A Durable Power of Attorney, however, after you pass on, or if you revoke it during your lifetime.

Is a Living Trust or a Will right for my spouse and I?

There are good reasons to have both a Will and a Living Trust in your estate plan. Living Trusts and Wills are often made at the same time to avoid any potential overlap in how assets are distributed. Before you decide on making one or the other, or both, it can help to learn more about each one.

One big difference is that a Living Trust takes effect the moment it is signed. In contrast, a Will does not take effect until you die. Another big difference is that, while both Wills and Living Trusts pass your assets to loved ones after your death, the assets in a Living Trust do not go through probate court. Not having to go through the probate process can save your estate, and your beneficiaries, a lot of money in attorney and court fees. Trusts may cost more to set up initially, but they tend to offer more flexibility and substantial savings down the road.

Using both a Will and a Living Trust can have benefits. Even if you establish a Living Trust, it is still a good idea to make a Will so that you can name an Executor who can take over the estate management process after your death. Also, there are assets that may not make it into your Trust. Maybe you have too much stuff to try to transfer to your Trust (like small personal items) or you acquire things after you've made your Trust and these items never make it into the Trust before your death. A Will may take into account all of your property, and may capture all of the assets that are not in your Trust. Another reason to have both is that you cannot name a Guardian for minor children in a Living Trust, but you can in a Will.

Married couples typically opt for a Revocable Living Trust. A Revocable Living Trust may be altered to account for major life changes, such as the birth of a child or grandchild, as long as both spouses are of sound mind. A Joint Trust allows both spouses to control the assets as long as they both have the capacity to do so. Alternatively, some spouses prefer to form separate Living Trusts. 

Whether you and your spouse make a Trust or a Will or both may be a good question to ask a lawyer. The answer often depends on your particular situation.

What are the main reasons for making a Durable Power of Attorney?

Setting up a Durable Power of Attorney along with a Will and Living Trust is a common part of many estate plans. A Durable Power of Attorney allows you to name a trusted individual to manage your legal, business, and financial affairs if you are unable to perform these tasks. It entrusts the named individual with significant control over your affairs, such as:

  • Management of cash, stocks, bonds, retirement accounts, and other financial accounts.
  • Property or real estate management.
  • Fiduciary and legal agreements with third parties.
  • Application for public benefits, such as Medicare.
  • Emergency estate planning documents.

Even if your spouse knows exactly how to manage such affairs in your absence, it may be a good idea to make it official with a Durable Power of Attorney. This decision may depend on the complexity of your legal and financial affairs. If a health condition could lead to serious consequences due to legal and financial obligations, then you may want to consider setting up a Durable Power of Attorney.

When do married couples make an estate plan?

It is never too early for a married couple to put together an estate plan. Life is full of uncertainties, but you can always make adjustments to your plan as time goes by. Estate planning is an especially good exercise for newlyweds and married couples with children. Putting together your plan as a couple involves making decisions together about who you want to care for your minor children should anything happen to you both. If your children are grown, you may want a Living Trust so that your assets can pass directly to your adult children upon your death, without going through probate. Whether or not you have children, it is also a good time to share what you want in terms of the distribution of individual personal property. For example, maybe you'd like your spouse to give your old guitar to your best friend from high school.

Marriage is a lifelong commitment as well as a financial partnership. Reviewing your options for a Living Trust, Last Will and Testament, Durable Power of Attorney, and other estate planning tools can go a long way toward ensuring your financial well-being as a couple. If you have questions about starting or updating your estate plan, reach out to a Rocket Lawyer network attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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