Estate planning is very important for everyone, but it is particularly important for veterans and their families. This section gives a summary of the basics related to wills and trusts and how these can come into play for wounded, ill, or injured veterans. Though this section will give you a basic understanding of concepts and issues. Execution of documents such as a will should not be done without the assistance of an attorney.
For more complex legal situations consult Lawyers for Heroes your next step pro bono legal resource for veterans and their families.
What is the difference between a will and a trust?
A will and a trust are different, and both are important tools to creating an estate plan. A will defines where various assets (property in your name, which can include personal property, real estate, and monies, such as your various banking, brokerage, and savings accounts) go upon death. A will also may name guardians and trustees for minor children or incapacitated persons, list who will take charge of your estate and what will happen to your debts (they do not die with you), and describe how your family should arrange for your funeral or memorial, including expenses. Property distributed in accordance with a will generally must go through a court process known as probate.
A trust is a more complicated legal concept; it creates a legal relationship and can help in managing the assets of an incapacitated person and in avoiding probate. Once created, the person who creates the trust (the grantor) allows a person/company (the trustee) to hold property for the benefit of another (the beneficiary — who can be the grantor or the trustee or a completely different third party). For example, Sam, the grantor, may create a trust asking his brother Bill, the trustee, to manage his savings account for the benefit of Sam’s daughter Michelle, the beneficiary in the event Sam dies. Think of a trust as an agreement between the grantor and the trustee. The grantor makes certain property available to the trustee, for certain purposes. The trustee (who may or may not receive a fee) agrees to manage the property in the way the grantor wants, as specified in the trust agreement. Remember, a grantor can be the original trustee but needs to designate a successor trustee to manage property upon the grantor’s incapacity or death.
My veteran is not capable of taking care of himself or herself. In making wills/trusts, how can I plan for someone to continue his or her care?
You and the veteran for whom you care will need a variety of legal tools to make sure the veteran is cared for should you die. This plan probably will include some version of a trust and a will, using pour-over provisions (a mechanism that puts everything left in your estate into your trust upon your death), an advance health care directive (sometimes called a living will, which is not really a will but can designate a health care agent and which can tell health care providers your specific health care instructions, including end-of-life plans), and powers of attorney for periods of incapacity. You will want to have your assets placed into a trust for the benefit of your veteran and appoint a trustee whom you trust and who understands your veteran’s situation. Because these documents can be complicated and your veteran’s specific needs will dictate the options that work for your family, it is best to work with an attorney experienced in estate planning and military/veterans benefits when drafting these documents. The American Bar Association’s Directory of Programs can help you find a free or low-cost attorney in your area to help with this process.
While on active duty, your veteran might have with the help of military legal assistance in drafting a will, a trust, and/or powers of attorney. If so, determine whether those documents address all of your family’s and your veteran’s current conditions and needs. If not, amend or replace the documents. Consider consulting an attorney to ensure it is enforceable.
The veteran for whom I care is not capable of taking care of himself or herself. We have minor children. In the event of my death, how do I insure my veteran and children stay together?
Discuss this situation with a lawyer. It might be possible to hire a full-time caregiver for the children as a feasible alternative, in which case you might want to create a trust out of which such a caregiver can be paid. It might be that the appointment of a guardian and/or a conservator for your children will be necessary if the veteran for whom you care is unable to carry out parental duties. Talk with the veteran on the topic of whom you both would like to serve as guardian/conservator if that becomes necessary. You will want to designate someone who will respect your wishes about keeping your children and the veteran together. An attorney can help you determine the best way to accomplish your wishes in your estate-planning documents. These documents can be complex, with many technical requirements, and they must be done correctly — legal assistance is extremely important. Refer to the American Bar Association’s Directory of Programs for free or low-cost help for this type of matter. The Guardianship section contains additional information.
Explore all VA benefits for which the veteran may qualify. These services could be useful with assisting the veteran to live a more independent life. For example, the VA’s Vocational Rehabilitation and Employment (VR&E) program assists veterans with service-connected disabilities to prepare for, find, and keep suitable jobs. For veterans with service-connected disabilities so severe they cannot immediately consider work, VR&E offers services to assist them in living as independently as possible. Based on a veteran’s needs, services might include help in obtaining a volunteer position, connecting with community-based support services, increased access within the home or community, or help in becoming more independent in activities of daily living such as bathing and dressing. The VA will provide the services or equipment needed to reach independent-living goals.
In addition, VA benefit programs such as Chapter 18 (Benefits for Children of Vietnam Veterans and Other Veterans), Chapter 35 (Survivors’ and Dependents’ Educational Assistance), and Chapter 36 (Educational and Vocational Counseling) can be useful with assisting dependents. Dependents might qualify for monthly monetary compensation, health care, and vocational training. For more information about all of these benefits, visit VBA. If you prefer to speak with a VR&E representative, go to www.va.gov and click on the locations tab to find your local VA regional office contact information or call (800) 827-1000.
If I and the veteran for whom I care die, how do we ensure our children will receive the military and veteran benefits to which they are entitled?
First, plan ahead for such contingencies. Next, create a will that names guardians or conservators of minor or incapacitated children if both parents die. Also consider a letter of instruction. While the letter of instruction might not be legally binding, it can provide the named guardian and conservator with important information, including information about military and VA benefits to which the children might be entitled. The letter should include the location of important documents, such as certified marriage and birth certificates as well as military records, including the DD Form 214 (Certificate of Release or Discharge from Active Duty; find out how to obtain it if you don’t already have it). You also might have (or need) a DD Form 215 if your discharge order (DD Form 214) was corrected. At a minimum, the guardian/conservator should be instructed to contact the VA. Specifically, the VA Office of Survivors Assistance can assist dependents and survivors.
There is a broad range of benefits and services to which parents, spouses, and/or children might be entitled from the VA’s Veterans Benefits Administration when a servicemember or veteran is deceased or totally and permanently disabled by a service-connected disability.
Benefits might include:
Services might include:
As with all estate-planning matters, enlist the help of an attorney to ensure all of your or your children’s rights to benefits and services are protected. The American Bar Association’s Directory of Programs can help you find free or low-cost legal counsel to assist you with these issues.
Below are some helpful resources when collecting important documents to have on hand.