Frequently Asked Questions
Who needs estate planning?
Everyone needs estate planning, no matter their age. Children under the age of 18 are protected by their parents' estate plan; everyone age 18 or older needs his or her own estate plan. Of course, estate plans vary immensely depending on goals, finances, family situation, domicile (where you live). There is no one-size-fits-all estate plan. If you're wondering whether you need an estate plan, you're asking the right question and, yes, you do.
When do my children need to get their own estate plan?
Everyone is surprised when we answer this question. Even an 18-year-old high school senior needs her own estate plan. Once a child attains the age of 18, she is legally an adult and must make her own health care, financial, and legal decisions. Without legal documentation, parents are powerless to act on behalf of their adult children.
Of course, an 18-year-old's estate plan is very different from a 48-year-old's estate plan because life, assets, goals, and family situation evolve over 30 years, but some basics are the same.
How much money do I need before an estate plan is necessary?
You don't need to be a Rockefeller or Kennedy to need an estate plan. In fact, you don't need any assets to need an estate plan. What you do need is one of the following: 1. someone you love, 2. the desire to control your life and finances, 3. the desire to maintain privacy, or 4. the wish to avoid court interference. To help you think this through, here are non-monetary reasons to have an estate plan in place: 1. an estate plan empowers your trusted helpers to make healthcare decisions and manage your day-to-day business if you're not able to; 2. appoints guardians for minor children and pets; and 3. avoids medical heroics through a living will.
My child is legally an adult, should she have her own estate plan?
Without a doubt, yes. Even an 18-year-old high school senior needs an estate plan. Once a child attains the age of 18, she is legally an adult and must make her own health care, financial, and legal decisions. Parents are powerless to act on behalf of their adult children without legal documentation.
We just got married don't have any children. Why would we need an estate plan?
Just because you marry someone does not automatically mean that they will inherit from you. Some assets, such as life insurance policies, have beneficiary designations that must be changed. Whoever is listed on those will receive the assets on your death. For those assets that do not have a beneficiary designation, they will be distributed according to the state law of intestacy. While each state may vary, in most cases, the assets will be distributed between the surviving spouse and other family members. An estate plan puts you in control of the inheritance you leave behind.
We may be moving soon. It's okay to wait until we're settled before having our estate planning done, right?
A move should not be a reason to put off your estate planning. While we understand that there are a lot of changes occurring, tragedy can occur at any time. Even if you are changing states, there are still some aspects such as updating your beneficiary designations that can be accomplished and will not be affected by the move. Additionally, it is a good idea to have a Medical Power of Attorney, even if you are not going to be in the state for too much longer. Life can be very unpredictable, and you do not want to get caught needing court intervention should something happen to you or your spouse before the move.
What does "disabled" mean and how can be sure to stay in control of my property if I become disabled?
In the estate planning world, the term "disabled" refers to an individual's incapacity or the inability to manage day-to-day business affairs such as managing and protecting assets, signing papers, paying bills, and filing taxes. "Disability" or "incapacity" doesn't mean you're laid up on the couch with a bad back; instead, it means that you don't have the physical and mental capacity necessary to manage your personal business. There are two options for maintaining control during a period of disability; and, often, we recommend the use of both: power of attorney and revocable living trust.
Who will take care of my finances if I become disabled?
Disability is the perfect example of why you need to appoint trusted helpers. If you have an up-to-date power of attorney, the named agent may be able to manage your finances, including paying your bills. Unfortunately, if you don't have a legally documented disability/incapacity plan, your loved ones will battle it out in court and a judge will decide who's in charge. Because power of attorney documents are often turned down, we use the belt and suspenders approach for many clients, including a trust with disability provisions.
TIP: Be sure to name a contingent agent in case your primary agent is unable or unwilling to serve. The same with disability trustees. Be sure to name successor disability trustees in case your named trustees are unable or unwilling to serve when the time comes.
I'm married to my second spouse, but my spouse and children from my first marriage get along really well. Why would I need to consider estate planning?
They may be getting along well now, but there's no telling what will happen after your death. The court records are full of cases that could be said to have begun with these exact facts. Estate planning puts you in charge and allows you to make sure everyone that's important to you – your new spouse and your children from a prior marriage – understands your wishes. This greatly reduces the risk of conflict and, in some cases, can completely eliminate conflict.
I have my home, bank accounts, and cars in joint tenancy with my new spouse, so why would I need a will or trust?
Joint tenancy does avoid probate and is often better than no planning. However, if you and your spouse were to die at the same time then the joint tenancy is "broken" and your respective halves would have to go through probate. Additionally, if your new spouse survives you, then he or she owns all of the property that was jointly owned. Even if the two of you agreed that your children from a prior marriage should be supported or left an inheritance, your new spouse owns the property and can do whatever he or she wants with the property. This could completely disinherit your children from a prior marriage.
How do I balance the interests of my children and my spouse from a second marriage?
We'll help you set up an estate plan that protects and provides for whomever you'd like – often that's children and, sometimes, a second or third spouse. Your estate plan, likely including trusts, will be carefully crafted to balance the interests of your children as well as your spouse. Without proper planning, too many parents accidentally disinherit their beloved children and cause havoc (and expensive lawsuits) in blended families. But with proper planning, you can take care of everyone's needs in an equitable way that reduces the risk of expensive conflict.