Key Elements of a Plan
Though the specifics of your estate plan should be based on your individual circumstances and goals, there are a few key elements common to most comprehensive and effective estate plans that we can hep you with.
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Nobody wants to plan for their own death or disability, but we all need to, even if we do not have a vast fortune to leave to our heirs. Some things will pass automatically, with or without the help of an estate planning lawyer- for example, if you and your spouse jointly own a home or a bank account, you own it with what is called a right of survivorship, meaning the home and the funds will automatically become the property of the surviving spouse.
Other assets, however, will be distributed by a probate court pursuant to certain rules (called the laws of intestacy) if you do not have a will. This means two things: first, that you do not have a say in the distribution of your assets, and second, even if you would agree with the court's distribution, your surviving family members will have to go through a cumbersome legal and administrative process in order to close out your estate, a process that could be far more expensive than hiring an estate planning lawyer to make a plan for you.
If you have substantial assets, there can also be tax consequences associated with how you set up your plan, consequences that can be difficult for your heirs and even cause the exact opposite of what you intend to occur. For example, imagine you have a piece of real estate, or a farm, or an interest in a business, that you would like to leave to your children so that they can preserve it for their children. If you have not planned for the impact of estate taxes, and there are not sufficient liquid funds in your estate to pay those taxes, your children may have to sell the very thing that you intended for them to hold. The right combination of wills and trusts, prepared by an experienced estate planning lawyer, can avoid or at least minimize these problems.
If you have young children, you will want to have a plan for who takes care of them if you and your spouse both die. Though a court does not have to follow your nomination of a guardian (because the court has its own responsibility to make that decision based on the best interests of the child), unless there is some reason for concern about your chosen guardian, in most cases that will be who is appointed to care for your children. Absent a will making that preference clear, and a combination of wills and trusts that provide both means and guidance to your chosen guardians, there may be a lack of clarity among your family members and unnecessary disputes at the very time you want things to be easier, not harder, for your children.
If you have grown children, you will have different questions to answer. You may want to structure your estate planning with wills and trusts that protect your children's inheritance from creditors or asset division in a divorce. If your children are young adults, you may want to consider a trust that limits their complete control of the assets until they reach a certain age. If you have a special needs child of any age, you will need to plan for the stewardship of that child's inherited assets as well as guardianship through a combination of wills and trusts.
There are other things short of death that require careful planning and the advice of an experienced estate planning lawyer. For example, if you or your spouse becomes incapacitated, do you know who is going to make medical and financial decisions for you, and do you know whether that person understands your wishes and preferences? If you find yourself in need of institutional care as you age, do you have a plan for funding that care that does not obliterate the assets you meant to leave to your children?
The good news is that that there are many tools to help you plan for these scenarios, and an experienced estate planning lawyer can help guide you to the plan that is right for you and your family, one which will give you peace of mind and allow you to focus on all of the other people and things that are truly important to you in your life.
Estate Planning Lawyer and Author