Rhode Island Estate Planning Lawyer

There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents.  Right now, you may be thinking that you don’t have an estate plan … and you might be surprised to learn that you actually do! In the absence of legal planning otherwise, your estate will be distributed after death according to Rhode Island’s laws of intestacy. 

You also may be surprised to learn that if you die without a will, your spouse may not inherit everything. In fact, he or she could end up with very little after your parents and descendants get their shares. And, if the court finds that you have no living relatives by blood or marriage, the state of Rhode Island will take your property.

Of course, this may not be what you want! 

You can replace Rhode Island’s plan with a properly drafted estate plan. While Rhode Island does not require you to consult a lawyer, there are plenty of complexities and landmines that can be avoided if you do! 

What is a Last Will and Testament?

Your last will and testament are just one part of a comprehensive estate plan. 

Some things you should know about wills:

• A will does not help an estate avoid probate. Many people are surprised to learn that having a will does not mean your estate will avoid probate in Rhode Island. A will is a legal document submitted to the probate court, so it is basically an “admission ticket” to probate.
• A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
• A will is a good place to nominate the guardians (or backup parents) of your minor children if they are orphaned.  All parents of minor children should document their choice of guardians.  If you leave this to chance, you could be setting up a family battle royal, and your children could end up with the wrong guardians.

Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, Special Needs Trusts, etc.

Trusts come in many “flavors,” they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. 

At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary). 

Depending on the situation, there may be many advantages to establishing a trust, including:

• Probate Avoidance. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) with no probate required. 
• Tax Planning. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. 
• Asset Protection / Creditor Protection. Trusts may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. 
• Incapacity Planning. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker becomes incapacitated. In this case, if the trust contains most of your assets and gives the trustee the power to pay your bills and manage most of your affairs, you may avoid the probate court process known as a conservatorship.

Powers of Attorney

A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a backup decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old.

Health Care Documents (or Advance Directives)

End-of-life discussions are difficult but making the effort now can protect your rights later. Rhode Island recognizes your right to control decisions related to your medical care and to designate others to make decisions for you when you can no longer make them yourself. You make your wishes known in advance, in writing, by using “advance directives.” 

Living Will

Rhode Island recognizes your right to create a living will, whereby you instruct your doctors to withhold or withdraw life-sustaining procedures should you suffer a terminal condition. The specific statute relating to living wills in Rhode Island is The Rights of the Terminally Ill Act.

Rhode Island Health Care Power of Attorney

Rhode Island also says you can designate another person to make health care decisions for you if you can not do so for yourself. The legal document for this purpose is called a Durable Power of Attorney for Health Care.

Book a call today with Jay Bianco, an experienced Rhode Island Estate Planning Lawyer.