An Estate Plan is a collection of legal documents that is created to protect you and your family in case anything unexpected were to happen. Military families in particular can greatly benefit from gaining the peace of mind knowing that their affairs are in order whilst serving the country. However, this process can be daunting especially when considering the wide array of options to choose from. Military families have access to the Judge Advocate General’s Corps (JAG), which provides estate planning services. However, is JAG estate planning the best option? Trust & Will explores special concerns military families face when setting up their estates.
What is the Judge Advocate General’s Corps (JAG)?
The Judge Advocate General Corps, or JAG Corps, is the law organization of the U.S. military branch. It also happens to be one of the nation’s largest law firms. The JAG is composed of licensed attorneys and judges operating under the title Judge Advocates who provide legal services to members of the army. They will also defend soldiers in military legal matters.
Judge Advocates can represent and advise individual soldiers and commanders in several areas such as:
Personal legal assistance
They will also represent and advise the army as an entity:
National security law
Contract and fiscal law
Why is estate planning important for military families?
Estate planning is important for any American family, but it is especially so for military families. First, there is the emotional charge knowing that a loved one may be in harm’s way while on active duty. Second, serving the country as a member of the military adds unique challenges and circumstances to consider and plan for.
At its foundation, a military family’s Estate Plan will look similar to that of civilians. What would happen if you were to become incapacitated or passed away? Who will look after your children? How will your assets be distributed? What are your final wishes? Setting up an Estate Plan answers these questions by making legal plans to lay out what should happen, including designating someone trustworthy to be in charge.
Having such an Estate Plan in place provides great peace of mind. In the event of your death, your affairs will already be in order and your loved ones are cared for. Your final wishes will be known. Last but not least, having an Estate Plan has proven to save the family time and money.
What does a JAG estate plan look like?
The Judge Advocate General’s Corps (JAG) and its Judge Advocates provide legal advice to soldiers, retired service people, and dependents. Earlier, we mentioned how they will provide assistance on personal legal issues. These issues range from adoption, taxes, divorce, and even landlord-tenant disputes.
This means that military families can seek JAG assistance in creating an Estate Plan. An Estate Plan created through the JAG will address the same needs that civilians have, which is what should happen if the individual passes away or becomes incapacitated.
Estate Planning documents will delegate a person who will be in charge. This person’s role has different names depending on the duties that they’re charged with, such as an Executor, Trustee, Guardian. These are fiduciary roles, meaning that the person must serve loyally and dutifully on behalf of the person who designated them. Breaching their duties could result in criminal or civil consequences.
Here are some common components of a JAG Estate Plan:
A Will that names an Executor and provides instructions on how to distribute assets should anything happen. If the person creating the Will has minor children, children with special needs, or children from previous relationships, they can include special instructions including naming a Legal Guardian for those children. The Last Will and Testament is also the document used to list your final wishes. Veterans Affairs provide funeral and burial benefits to military families.
Power of Attorney (POA) documents designating fiduciary roles. For instance, a Financial POA authorizes an agent to handle financial and legal affairs and a Medical POA names a proxy who can make medical decisions on your behalf if you were to become incapacitated. A key difference between JAG estate planning and civilian estate planning is that POA documents are typically signed before deployment and have an expiration date.
The Living Will goes hand-in-hand with the Medical Power of Attorney to create your Advanced Medical Directive. These documents provide a space for you to leave instructions on medical treatments you refuse or accept in case you become incapacitated or terminally ill. You also name your health care proxy or POA to make decisions for you if you’re unable to (in line with your wishes.)
Life Insurance: Military members receive the benefit of life insurance through Servicemembers’ Group Life Insurance (SGLI), with the option to supplement your benefit amount with another policy. While life insurance technically is not an estate planning document, it is a critical component of your estate planning strategy in terms of the care you provide for your loved ones should you pass away.
Survivor benefits: The Defense Department and Department of Veterans Affairs provide benefits for military families if a military member dies while in service (or from an injury or illness incurred during service.) Be sure to apply for benefits that aren’t automatic.
Testamentary Trust: These Trusts are created after death and serve as a vehicle to hold funds for your child until they become an adult (often 25 years old in JAG documents.) These Trusts are created during the Probate process and are supervised by the court.
Special concerns for military families
Military families often face challenging circumstances relative to civilians. First of all, service members have access to a wide array of estate planning and related benefits, which can be confusing. Luckily, both active duty and retired military members and their families have access to the JAG corps for their legal services.
For instance, a Judge Advocate can help educate military families on all of the benefits they have access to, and how to take advantage of them. They can help point out how to plan in advance and effectively integrate these benefits into their Estate Plans.
The JAG Corps can also provide counseling regarding the real risks that are faced by military families. Unlike civilians, military service members go on active duty. This means that they and their families face the real risk of grave illness, injury, or even death while in service. There is an increased risk of being survived by dependents and children. It is helpful to have a legal professional specializing in the military to navigate the world of estate planning while juggling these heavy emotions.
Last but not least, traveling for military duty can create complications. Estate planning documents are governed under state law. The JAG can help review your Estate Plan when you move to a new state, or even overseas.
However, there is one key component missing from a JAG Estate Plan, and that is the Revocable Living Trust. While the JAG Corps typically assist military families in creating Will-based Estate Plans, they typically do not create Trusts. One exception is the Testamentary Trust, which an Advocate may create. Described earlier, Testamentary Trusts are created through the Probate process to hold money for a child until they reach adulthood, often the age of 25.
Otherwise, the JAG does not assist military families in creating Trust-based Estate Plans. This is a major missed opportunity for military families. Trusts are a powerful estate planning tool that allow families to move assets and property out of an estate such that they do not have to pass through the probate process. You can read about the probate process in detail here, but essentially, while probate is an important legal proceeding that provides oversight it is expensive and lengthy. Many individuals would choose a Trust-based Estate Plan if they knew that it could help their estate avoid probate and thus avoiding an expense that can amount up to 3 to 5 percent of the estate, as well as delay the process by 1 to 3 years. Further, Trusts can reduce taxes, provide better protection, and allow the Trustor to control exactly how their assets should be distributed. Last but not least, the probate process is public while a Trust provides privacy for a grieving family.
Upgrade your JAG estate plan with Trust & Will
First Lieutenant Michael Held of the U.S. Marine Corps argues that “military attorneys are not estate planning experts” and even suggests that they should exit the estate planning space unless they are properly trained in the area of creating Living Trusts. According to Lieutenant Held, estate planning courses are not required, and the Naval Justice School does not teach the advantages of the Living Trust.
This guide explored the benefits of JAG estate planning for military servicemembers and their families, which should not be minimized. However, until Judge Advocates begin to make a practice of drafting Living Trusts, military families are missing out on a key estate planning benefit. Trusts help civilians avoid estate planning delays, costly fees, and certain taxes. Without taking advantage of a Trust, military heirs must bear the burden of probate, both mental and fiscal. This as a result is reducing their overall inheritance.
So, what can a military family do if they have a JAG Estate Plan but would also like to take advantage of the myriad of benefits offered by a Trust?
Trust & Will provides a straightforward solution: an online estate planning platform that offers an affordable Trust-based Estate Plan. Through our platform, you can easily update your existing Estate Plan to include a Trust. You won’t have to fill out lengthy, confusing questionnaires either. Our interactive, prompt-based experience was carefully crafted with legal experts with you in mind. And great news– we offer discounts to military families. Take a look and see what we have to offer today!
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.