Wills, trusts, health care directives, powers of attorney, and legal guardian nominations are on many of our hearts and minds as COVID-19 compels us to face our own fragility and mortality.
It’s not as if we didn’t already know we are all mortal, but within our current reality, that mortality becomes all the more real. And one way to feel some control over what’s happening out there is to make sure we all have our legal affairs in order at home. That way, if something does happen to us, our families aren’t left with a big legal mess to clean up while they are grieving.
If you are trying to get your financial house in order right now, you may be just getting some basic documents in place. You may even be doing it yourself.
If that’s the case, it’s very important for you to know that the cost of a failed plan can be very high for the people you love. Plus, if your documents are not properly signed, they will not work—period. End of story. And if your documents don’t work, your family could be stuck in court or conflict, which is probably the exact thing you want to avoid by handling your estate planning now.
There are many ways plans fail, but one of the worst ways we see is when someone starts a plan and doesn’t get it signed properly. You do not want this to happen to your family, trust me. If you care enough about estate planning, you will want to make sure your plan will work when your family needs it.
That means you need to make sure your legal documents are actually signed and signed in the right way. Some legal documents require two witnesses, and some require notarization; however, in today’s social-distancing reality, these signatures could be difficult to come by. Some states have allowed remote notarization, California for some reason, has not.
While we understand you likely have a desire to get documents in place now, we also believe there is going to be a significant increase in conflict and litigation because of DIY estate planning documents for the future. Don’t let that happen to the people you love.
Dedicated to empowering your family, building your wealth and defining your legacy,
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With all the media about “digital wills”
and “online estate planning” it could be tempting to think you can do your
estate planning yourself, online. And, maybe you can. But, if you do, you need
to know the potential pitfalls. Online estate planning could be a big trap for
the unwary and end up leaving your family worse off than if you had done
nothing at all.
First and foremost, before you do any of
your own online estate planning, it’s critical to understand your family
dynamics, the nature of your assets, and what the state of California would say
should happen to your assets if something happens to you. You see, if you don’t
do estate planning, the state does have a plan for your assets if you become
incapacitated or when you die. You need to know what that plan is, so you know whether
you want to change it.
But Don’t I Need a Will and Can’t I Just Do It Online? Here’s the funny thing about estate planning: the one legal document that everyone thinks they need most actually does the least.
Every adult does need SOME estate
planning. A will is always a good idea because it says who gets, and who oversees
distributing, what you have. However, if the default law would have given your
assets to the same people you would choose and authority to the person you
would name anyway, then an online will would probably do nothing valuable for
you at all.
Even a properly drafted will does not
keep your family out of court (a will must always be adjudicated by a judge).
And if drafted improperly, it could require the person you’ve named to handle
things for you to get a bond, which is like an insurance policy. These are
expensive and can be hard to get for an executor who has less than a stellar
credit score. If your named executor cannot get a bond, it would then mean the
court would appoint a court ordered executor, and that can be costly for your
estate. This is just one of the examples of how having a will prepared online,
can create more expense for the people you love. Unfortunately, all the online
will preparation solutions I’ve reviewed don’t even mention this risk.
So, yes, you can do your own will online,
but at what potential cost for the people you love?
The Problem with Online Wills DIY online estate plans (and even many estate plans created by lawyers) usually include three or four basic documents: a will, a financial power of attorney, an advance health care directive, and possibly a trust.
But, honestly, completing these documents
without counsel is simply not enough to guarantee your estate will be executed
as simply, affordably, and effectively as you would wish.
For instance—are you sure there isn’t
some missing consideration that could lead to turmoil as your family tries to
figure it out? Did you know that most family fights don’t even happen over
money, but over lack of clarity? Have you considered all your extended family,
including stepchildren and ex-spouses? What will be done with all the personal,
sentimental items you want to pass on to your children?
And there have been far too many
scenarios where seniors, even those who had some estate planning done, get
caught in the court system or even declared incompetent, and then have
court-appointed guardians named, who then drain their accounts. In many cases,
their assets are gutted before they can go to their kids. You don’t want that
to happen to you or your family and a do-it-yourself will makes that outcome
more likely, not less.
What about making sure your family knows
what you have and where it is? An online will won’t tell them that. There’s nearly
$10 billion being held in the California department of unclaimed property; much
of it because someone died and their family lost track of their assets.
So how can you be sure you’ve got
everything covered, legally?
With online wills and DIY estate planning
docs, you wouldn’t even know what questions to ask to uncover the potential
risks to the people you love, who deserve to receive what you’ve created in
your life, without a big mess.
Think about this: do you know anyone who has lost family relationships because, after a loved one died, the family ended up in an irrevocable fight? Maybe this has even happened in your own family. I see it all the time and the consequences—both, financial and emotional—can be devastating.
And, it’s all unnecessary.
Yes, even if there are attorneys on staff
at these online companies, they don’t get to know you and your family dynamics
enough to spot the real issues that could arise. They are, instead, focused on
a one-size-fits-all solution and easy answers to complex issues.
The Kind of Help Your Family Deserves Many lawyers who specialize in estate planning often base their work on template documents. Even if they are well-intentioned, they’re working with an old, traditional system that places the focus solely on providing documents. But the documents are only as good as the understanding a lawyer has about your family dynamics, the nature of your assets, how the law will apply to your situation, and how the documents can be written as simply as possible to achieve your wishes. You need much more than just a set of four or five filled-out template documents to address all those complexities.
Your plan should include an inventory of your
assets and guarantee they are all owned in a way that will keep your family out
of court and conflict while ensuring everyone named in your plan has what they
need and understands your choices. Most importantly, you should understand
your plan and ensure that it passes along more than just your money.
Do it yourself estate planning is risky.
While it may be better than nothing, it may also be worse. And it won’t be
until after you are gone that your loved ones find out that answer.
Dedicated to empowering your family, building your wealth and defining
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A last will and testament can ensure your wishes are
respected when you die. But if your will isn’t legally valid, those wishes
might not actually be carried out, and instead the laws of “intestate succession”
would apply, meaning that the state decides who gets your stuff, and it’s very
likely not to be who you would choose.
If you’ve created a will online, we congratulate you
for doing SOMETHING, but I strongly recommend that you have it reviewed and
make sure it does what you want and is actually legally valid. I’ve seen it far
too many times: someone THINKS they’ve created a will, because they did
something, but the SOMETHING was the WRONG THING, and their family is left to
deal with the fallout, confusion and complications that result.
The validity of a will depends on where you live
when you die, as last will and testament laws vary from state to state. California
requires wills to meet the following criteria in order to be legally binding:
The Essential Requirements You must be at least 18 years old or an emancipated minor to create a legally valid will.
You must be of sound mind and capable of
understanding your intentions for your estate, who you want to be a
beneficiary, and your relationship with those people when you create your will.
You must sign your will or direct someone
else to sign it if you are physically incapable of doing so.
There must be at least two witnesses—who
are not beneficiaries— present at the signing.
Handwritten Wills You may write a holographic will, which means a will that is written completely in your own hand, with no other printed material on the page. In that case, there are no witnesses required, and, in fact, having a witness would make the will invalid because there must be no other writing other than your hand on the page for a holographic will to be valid.
When a Will Isn’t Valid If your will does not adhere to the legal requirements, the court will declare it invalid. In this case, your estate would pass under California’s intestacy laws, which means your assets would go to your closest living relatives, as determined by the law. And that may or may not be who you would want to receive your assets.
Is a Will All You Need? A will is a baseline foundation for any estate plan, but it might not be enough to protect your family. A will does not keep your assets out of court, and it does not operate in the event of your incapacity. It also does not ensure your minor children will only ever be cared for by whom you choose. And a will alone cannot ensure your loved ones receive your assets protected from unnecessary conflict or creditors.
The best way to ensure your will is legally valid is
by consulting with an experienced estate planning attorney to confirm your will
follows California’s laws and to evaluate your estate plan to ensure it will
protect your wishes and provide for your family according to those wishes in
the event of your incapacity, or when you die.
Dedicated to empowering your
family, building your wealth and defining your legacy,
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child requires or is likely to require governmental assistance to meet their
basic needs, do not leave money directly to your child. Instead, establish a
Special Needs Trust.
A trust that
is not designed with your child’s special needs in mind will probably render
your child ineligible for essential benefits. A Special Needs Trust is designed
to manage resources while maintaining the individual’s eligibility for
government benefits. Planning is important because many beneficiaries as adults
will rely on government benefits for support. If the disabled person has assets
in their own name, they might lose eligibility.
and other public benefits programs, will not pay for everything your child
might need. A Special Needs Trust can pay for medical and dental expenses,
annual independent check-ups, necessary or desirable equipment (such as a
specially equipped van), training and education, insurance, transportation, and
some Special Needs Trusts are unnecessarily restrictive and generic. Many
trusts are not customized to the particular child’s needs. Thus, the child
fails to receive the support and benefits that the parent provided when they
were alive. For example, children who are high functioning and active in their
communities can benefit from a Special Needs Trust that is carefully tailored
to provide adequate resources to support their social lives.
child have significant medical concerns? Should the trust allow for birthday
gifts for other family members? What about travel expenses to visit loved ones?
Do you have a preferred living arrangement for your child? Your child’s special
needs trust should address all these issues and more.
mistake attorneys with special knowledge in this area often see is a “pay-back”
provision in the trust rather than allowing the remainder of the trust to go to
others upon the death of the child with special needs. If a “pay-back”
provision is included unnecessarily, Medicaid will receive the remainder (up to
the amount of benefits provided) in the trust upon the death of the
beneficiary. These “pay-back” provisions, however, are necessary in certain
types of special needs trusts. An attorney who knows the difference can save
your family a small fortune.
Needs Trust will help you avoid one of the most common mistakes parents make.
Although many people with disabilities rely on SSI, Medicaid, or other needs-based
government benefits, you may have been advised to disinherit your child with
disabilities—the child who needs your help the most—to protect that child’s
public benefits. These benefits, however, rarely provide more than subsistence,
and this “solution” does not allow you to help your child after you are
incapacitated or gone.
your child with special needs might be a temporary solution if your other
children are financially secure and have money to spare. But permanently disinheriting
your child with special needs could be a huge mistake! It is not a solution
that will protect your child after you and your spouse are gone. The money can
be lost in a lawsuit, divorce, liability claim, or adverse judgment against
your other children. For example, what if your child with the money divorces?
His or her spouse may be entitled to half of it and will likely not care for
your child with special needs. What if your child with the money dies or
becomes incapacitated while your child with special needs is still living?
just some of the concerns parents of special needs children need to navigate.
The bottom line is to get a special needs trust in place with the help of an
advisor who understands the unique issues inherent with special needs
Dedicated to empowering your
family, building your wealth and defining your legacy,
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Both wills and trusts are estate planning documents that can be used to pass your wealth and property to your loved ones upon your death. However, trusts come with some distinct advantages over wills that you should consider when creating your plan.
That said, when comparing the two planning tools, you won’t necessarily be choosing between one or the other—most plans include both. Indeed, a will is a foundational part of every person’s estate plan, but you may want to combine your will with a living trust to avoid the blind spots inherent in plans that rely solely on a will.
Here are four reasons you might want to consider adding a trust to your estate plan: 1. Avoidance of probate One of the primary advantages a living trust has over a will is that a living trust does not have to go through probate. Probate is the court process through which assets left in your will are distributed to your heirs upon your death.
During probate, the court oversees your will’s administration, ensuring your property is distributed according to your wishes, with automatic supervision to handle any disputes. Probate proceedings can drag out for months or even years, and your family will likely have to hire an attorney to represent them, which can result in costly legal fees that can drain your estate.
Bottom line: If your estate plan consists of a will alone, you are guaranteeing your family will have to go to court if you become incapacitated or when you die.
However, if your assets are titled properly in the name of your living trust, your family could avoid court altogether. In fact, assets held in a trust pass directly to your loved ones upon your death, without the need for any court intervention whatsoever. This can save your loved ones major time, money, and stress while dealing with the aftermath of your death.
2. Privacy Probate is not only costly and time consuming, it’s also public. Once in probate, your will becomes part of the public record. This means anyone who’s interested can see the contents of your estate, who your beneficiaries are, as well as what and how much your loved ones inherit, making them tempting targets for frauds and scammers.
Using a living trust, the distribution of your assets can happen in the privacy of our office, so the contents and terms of your trust will remain completely private. The only instance in which your trust would become open to the public is if someone challenges the document in court.
3.A plan for incapacity A will only governs the distribution of your assets upon your death. It offers zero protection if you become incapacitated and are unable to make decisions about your own medical, financial, and legal needs. If you become incapacitated with only a will in place, your family will have to petition the court to appoint a guardian to handle your affairs.
Like probate, guardianship proceedings can be extremely costly, time consuming, and emotional for your loved ones. And there’s always the possibility that the court could appoint a family member you’d never want making such critical decisions on your behalf. Or the court might even select a professional guardian, putting a total stranger in control of just about every aspect of your life.
With a living
trust, however, you can include provisions that appoint someone of your
choosing—not the court’s—to handle your assets if you’re unable to do so.
Combined with a well-drafted medical power of attorney and living will, a trust
can keep your family out of court and conflict in the event of your incapacity.
4. Enhanced control over asset distribution Another advantage a trust has over just having a will is the level of control they offer you when it comes to distributing assets to your heirs. By using a trust, you can specify when and how your heirs will receive your assets after your death.
For example, you could stipulate in the trust’s terms that the assets can only be distributed upon certain life events, such as the completion of college or purchase of a home. Or you might spread out distribution of assets over your beneficiary’s lifetime, releasing a percentage of the assets at different ages or life stages.
In this way, you can help prevent your beneficiaries from blowing through their inheritance all at once and offer incentives for them to demonstrate responsible behavior. Plus, if the assets are held in trust, they’re protected from the beneficiaries’ creditors, lawsuits, and divorce, which is something else wills don’t provide.
If, for some
reason, you do not want a living trust, you can use a testamentary trust to
establish trusts in your will. A testamentary trust will not keep your family
out of court, but it can allow you to control how and when your heirs receive
your assets after your death.
An informed decision The best way for you to determine whether your estate plan should include a living trust, a testamentary trust, or no trust at all is to meet with a trusted estate planning attorney. Sitting down with your Personal Family Attorney to discuss your family’s planning needs will empower you to feel 100% confident that you have the right combination of planning solutions in place for your family’s unique circumstances.
Dedicated to empowering your family,
building your wealth and defining your legacy,
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As we head
into the thick of the holiday season, you’re likely spending more time than
usual surrounded by family and friends.
The holidays offer an opportunity to visit with
loved ones you rarely see and get caught up on what’s been happening in
everyone’s life. And though it might not seem like it, the holidays can also be
a good time to discuss estate planning. In fact, with everyone you love—from
the youngest to the oldest—gathered under one roof, the holidays provide the ideal opportunity to talk about
That said, asking your uncle about his end-of-life wishes while he’s watching
the football game probably isn’t the best way to get the conversation started.
In order to make the discussion as productive as possible, consider the
1. Set aside a time and place to talk Trying to discuss estate planning in an impromptu fashion over the dinner
table or while opening Christmas gifts will most likely not be very productive.
Your best bet is to schedule a time separate from the festivities, when you can
all focus and talk without distractions or interruptions.
It’s also a good idea to be upfront with your family about the meeting’s
purpose, so no one is taken by surprise, and are more prepared for the talk.
Choose a setting that’s comfortable, quiet, and private. The more relaxed
people are, the more likely they’ll be comfortable sharing about sensitive
2. Create an agenda, and set a start and stop time
To ensure you can cover every subject you want to
address, create a list of the most important points you want to cover—and do
your best to stick to them. You should encourage open conversation but having a
basic agenda of the items you want to address can help ensure you don’t forget
Along those same lines, set a start and stop time for
the conversation. This will help you keep the discussion on track and avoid
having the conversation veer too far away from the main points you want to
discuss. If anything significant comes up that you hadn’t planned on, you can
always continue the discussion later.
Keep in mind that the goal is to simply get the planning conversation started,
not work out all the specific details or dollar amounts.
3.Explain why planning is important From the start, assure everyone that the conversation isn’t about prying into anyone’s finances, health, or personal relationships. Instead, it’s about providing for the family’s future security and wellbeing no matter what happens. It’s about ensuring that everyone’s wishes are clearly understood and honored, not about finding out how much money someone stands to inherit.
While some relatives might be reluctant to open up, being surrounded by the loved ones who will ultimately benefit from planning can make people more willing to discuss these sensitive subjects.
Talking about these issues is also a crucial way to avoid unnecessary conflict and expense down the road. When family members don’t clearly understand the rationale behind one another’s planning choices, I’ve seen it breed conflict, resentment, and costly legal battles.
4. Discuss your experience with planning If you’ve already set up your plan, one way to get the discussion going is to explain the planning vehicles you have in place and why you chose them. Mention any specific questions or concerns you initially had about planning and how you addressed them. If you have loved ones who’ve yet to do any planning and have doubts about its usefulness, discuss any concerns they have in a sympathetic and supportive manner.
For the love of your family Though death and incapacity can be awkward topics to discuss, talking about how to properly plan for such events can actually bring your family closer together this holiday season. In fact, our clients consistently share that after going through our estate planning process they feel more connected to the people they love the most. And they also feel clearer about the lives they want to live during the short time we have here on earth.
When done right, planning can put your life and relationships into a much clearer focus and offer peace of mind knowing that the people you love most will be protected and provided for no matter what.
Most importantly this holiday season, enjoy being in the moment and strengthening your bonds with the important people in your life.
Dedicated to empowering your family, building your wealth and defining your legacy,
https://www.calilaw.com/wp-content/uploads/2019/12/family-dinner-91024.jpg477600Anthea Peterhttps://www.calilaw.com/wp-content/uploads/2020/02/Cali-Law-Logo-A5-1-300x99.pngAnthea Peter2019-12-05 19:56:372019-12-05 19:56:404 Tips for Discussing Estate Planning With Your Family This Holiday Season
Do a Google search for “online estate
planning documents,” and you’ll find dozens of different websites. These sites
let you complete and print out just about any kind of planning document you can
think of—wills, trusts, healthcare directives, and/or power of attorneys—in
just a matter of minutes. And the documents are typically quite inexpensive.
At first glance, such DIY planning documents might appear to be a quick and cheap
way to finally cross estate planning off your bucket list. These forms may not
be perfect, many consumers reason, but at least they’re better than having no
plan at all.
However, relying on DIY planning documents can actually be worse than having no plan at all—and here’s why:
An inconvenient truth Creating a plan using online documents, can give you a false sense of
security—you think you’ve got planning covered, when you most probably do not. Relying
on DIY planning documents is one of the most dangerous choices you can make. In
the end, such generic forms could end up costing your family even more money
and heartache than if you’d never gotten around to doing any planning at all.
At least with no plan at all, planning would likely remain at the front of your
mind, where it rightfully belongs until it’s handled properly.
Planning to fail Many people don’t realize that estate planning entails much more than just
filling out template driven legal forms. These websites offer a
one-size-fits-all solution to your unique situation, needs, and goals. Even worse,
they provide no real guidance or counsel, which leads to a plan that misses the
mark often—and the loved ones you were trying to protect will be the very ones
forced to clean up the mess.
The whole purpose of estate planning is to keep your family out of court and
out of conflict in the event of your death or incapacity. Yet, as cheap online
estate planning services become more and more popular, millions of people are
learning that taking the DIY route can not only fail to achieve this purpose,
it can make the court cases and family conflicts far worse and more costly.
One size does not fit all Online planning documents may appear to save you time and money, but keep in
mind, just because you created “legal” documents doesn’t mean they will actually
work when you need them. Indeed, if you read the fine print of most DIY
planning websites, you’ll find numerous disclaimers pointing out that their
documents are “no substitute” for the advice of a lawyer.
Some disclaimers warn that these documents are not even guaranteed to be
“correct, complete, or up to date.” These facts should be a huge red flag, but
it’s just one part of the problem.
Even if the forms are 100% correct and up-to-date, there are still many
potential pitfalls which can cause the documents to not work as intended—or
fail all together. And without an attorney to advise you, you won’t have any
idea of what you should watch out for.
Estate planning is not a one-size-fits-all kind of deal. Even if you think your
particular situation is simple, that turns out to almost never be the case. To
demonstrate just how complicated the planning process can be, here are 4 common
complications you’re likely to encounter with DIY plans.
1. Improper execution To be considered legally valid, some planning documents must be executed
(i.e. signed and witnessed or notarized) following very strict legal
procedures. For example, California requires that you and every witness to your
will must sign it in the presence of one another. If your DIY will doesn’t
mention that (or you don’t read the fine print) and you fail to follow this
procedure, the document can be worthless.
2. Not adhering to state law State laws are also very specific about who can serve in certain roles like
trustee, executor, financial power of attorney, and witnesses. Having an
invalid person serving in an important role can cause your entire plan to fail.
3. Unforeseen conflict Family dynamics are—to put it lightly—complex. This is particularly true for
blended families, where spouses have children from previous relationships. A
DIY service cannot help you consider all the potential areas where conflict
might arise among your family members and help you plan to avoid it. When done
right, the estate planning process is a huge opportunity to build new
connections within your family.
4.Thinking a will is enough Lots of people believe that creating a will is enough to handle all their
planning needs. But this is rarely the case. A will, for example, does nothing
in the event of your incapacity, for which you would also need a healthcare
directive and/or a living will, plus a durable financial power of attorney.
Furthermore, because a will requires probate, it does nothing to keep your
loved ones out of court upon your death. And if you have minor children,
relying on a will alone could leave your kids vulnerable to being taken out of
your home and into the care of strangers.
Don’t do it yourself Given all these potential dangers, DIY estate plans
are a disaster waiting to happen. And as we’ll see next week, perhaps the worst
consequence of trying to handle estate planning on your own is the potentially
tragic impact it can have on the people you love most of all—your children.
Dedicated to empowering your family, building your wealth and defining your legacy,
Now that same-gender couples can legally
marry in all 50 states, more Americans than ever before are enjoying the rights
and benefits that come with marriage. Estate planning is one arena where these
new rights and benefits are readily apparent.
While the planning vehicles available to same-gender and opposite-gender married couples are generally the same, there are a few unique considerations those in same-gender marriages should be aware of. Here are three of the most important things to keep in mind.
Relying solely on a will is risky: For several reasons, putting a trust in place—rather than relying solely on will—is a good planning strategy for nearly everyone. Upon the death of one spouse, a will is required to go through the often long, costly, and conflict-ridden court process known as probate. However, assets passed through a trust go directly to the named beneficiaries without the need for probate.
What’s more, a trust works in cases of both your death and incapacity, while a will only goes into effect upon death. Given this, it’s usually best for those in any marriage to create trust based plans.
Don’t neglect to plan for incapacity: Estate planning is not just about planning for your death; it’s also about planning for your potential incapacity. Should you be incapacitated by illness or injury, it’s not guaranteed that your spouse would have the ultimate legal authority to make key decisions about your medical treatment and finances.
Absent a plan for incapacity, it’s left to the court to appoint the person who will make these decisions for you. Though spouses are typically given priority, this isn’t always the case, especially if unsupportive family members challenge the issue in court. To ensure your spouse has the authority to make decisions for you, you must grant him or her medical power of attorney and financial power of attorney.
Medical power of attorney gives your spouse the authority to make health-care decisions for you if you’re incapacitated and unable to do so yourself. By the same token, financial power of attorney gives your spouse the authority to manage your financial affairs. And be sure to also create a living will, so that your spouse will know exactly how you want your medical care managed in the event of your incapacity.
Ensure parental rights are protected: While the biological parent of a child in a same-gender marriage is of course automatically granted parental rights, the non-biological spouse/parent still faces a number of legal complications. Because the Supreme Court has yet to rule on the parental rights of non-biological spouses/parents in a same-gender marriage, there is a tangled, often-contradictory, web of state laws governing such rights.
To ensure the full rights of a non-biological parent, you may want to consider second-parent adoption. But, by using a variety of unique planning strategies, your Personal Family Lawyer can provide non-biological, same-gender parents with nearly all parental rights without going through adoption. Using our Kids Protection Plan®, couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes.
Dedicated to empowering your family, building your wealth and defining your legacy,
Whenever the topic of estate planning comes up, people invariably mention creating a will. And with good reason—having a will is a foundational aspect of your estate plan.
However, a will is only one small part of effective planning. In fact, if your plan consists of a will alone, you’re guaranteeing your family will have to go to court when you die. There’s a saying in this field of law: “Where there’s a will, there’s a probate.” And it’s no laughing matter.
One of my primary goals as an estate planning attorney is to keep my clients’ families out of court and out of conflict no matter what. Yet with only a will in place, your plan will fall woefully short of that goal, leaving your loved ones—and yourself, if you become incapacitated —susceptible to getting stuck in an unnecessary, expensive, time-consuming, and public court process.
Here’s why having just a will is not enough:
A will offers no protection against incapacity Awill helps ensure your assets are properly distributed when you die. But it offers no protection if you become incapacitated and are unable to make decisions about your own medical, financial, and legal needs.
Should you become incapacitated with only a will in place, your family would have to petition the court to appoint a guardian or conservator to manage your affairs, which can be extremely costly, time consuming, and traumatic.
Your family must go to court While you may think having a will allows your loved ones to inherit your assets without court intervention, this is not true. For your assets to be legally transferred to your beneficiaries, your will must first pass through the court process called probate.
The probate process can be extremely distressing for your loved ones. The proceedings can drag out over years, and in most instances, your family will have to hire an attorney, generating hefty legal bills that can quickly drain your estate.
Moreover, probate is public, so anyone can find out the value and contents of your estate. They can also learn what and how much your family members inherit, making them tempting targets for frauds and scams.
And if you think you can just pass on your assets using beneficiary designations to avoid all of this… well, that’s just asking for trouble.
A will doesn’t protect against creditors, lawsuits, or poor decisions Passing on your assets using a will leaves those assets vulnerable to several potential threats. Your assets are not only subject to claims made by a beneficiary’s creditors, but they are also vulnerable to lawsuits and divorce settlements the beneficiary may be involved in. And if your beneficiary is immature or has poor judgment, a sudden windfall of cash could cause serious problems.
Not all assets are covered by a will Some assets can’t even be included in a will. For example, a will only covers assets or property owned solely in your name. It does not cover property co-owned by you with others listed as joint tenants, nor does a will cover assets that pass directly to a beneficiary by contract, such as a life insurance policy or retirement account.
Don’t let your plan fall short Though a will is an integral part of your estate plan, a will is almost never enough by itself. Instead, wills are often combined with other planning vehicles, such as living trusts, to provide a level of protection devoid of any gaps or blind spots. And here’s the thing: If your plan is incomplete, it’s your family that suffers, having to clean it all up after you are gone.
I want to empower you to feel confident that you have the right combination of planning solutions for your family’s unique circumstances. Please let me know if you have any questions.
Dedicated to empowering your family, building your wealth and protecting your legacy,
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In the first part of this series, we discussed one of the most frequent causes for dispute over your estate plan. Here, we’ll look at another leading cause for dispute and offer strategies for its prevention.
Contesting the validity of wills and trusts The validity of your will and/or trust can be contested in court for a few different reasons. If such a contest is successful, the court declares your will or trust invalid, which effectively means the document(s) never existed in the first place. Obviously, this would likely be disastrous for everyone involved, especially your intended beneficiaries.
because someone disagrees with what he or she received in your will or trust
doesn’t mean that person can contest it. Whether or not the individual agrees
with the terms of your plan is irrelevant; it is your plan after all. Rather, he or she must prove that your plan is
invalid (and should be thrown out) based on one or more of the following legal
The document was improperly executed (signed,
witnessed, and/or notarized) as required by state law.
You did not have the necessary mental capacity
at the time you created the document to understand what you were doing.
Someone unduly influenced or coerced you into
creating or changing the document.
The document was procured by fraud.
only those individuals with “legal standing” can contest your will or trust.
Just because someone was intimately involved in your life, even if they’re a
blood relative, doesn’t automatically mean they can legally contest your plan.
the potential for legal standing generally fall into two categories: 1) Family
members who would inherit, or inherit more, under state law if you never
created the document. 2) Beneficiaries (family, friends, and charities) named
or given a larger bequest in a previous version of the document.
Solution: There are times when family members might contest your will and/or trust over legitimate concerns, such as if they believe you were tricked or coerced into changing your plan by an unscrupulous caregiver. However, that’s not what I’m addressing here.
Here, we’re looking at—and seeking to prevent—contests which are attempts by disgruntled family members and/or would-be beneficiaries seeking to improve the benefit they received through your plan. We’re also seeking to prevent contests that are a result of disputes between members of blended families, particularly those that arise between spouses and children from a previous marriage.
working with an experienced lawyer is of paramount importance if you have one
or more family members who are unhappy—or who may be unhappy—with how they are
treated in your plan. This need is especially critical if you’re seeking to
disinherit or favor one part of your family over another.
Some of the
leading reasons for such unhappiness include having a plan that benefits some children
more than others, as well as when your plan benefits friends, unmarried
domestic partners, and/or other individuals instead of, or in addition to, your
family. Conflict is also likely when you name a third-party trustee to manage
an adult beneficiary’s inheritance because he or she is likely to be negatively
affected by the sudden windfall of money.
cases, it’s vital to make sure your plan is properly created and maintained to
ensure these individuals will not have any legal ground to contest your will or
trust. One way you can do this is to include clear language that you are making
the choices laid out in your plan of your own free will, so no one will be able
to challenge your wishes by claiming your incapacity or duress.
Beyond having a sound plan in place, it’s also crucial that you clearly
communicate your intentions to everyone affected by your will or trust while
you’re still alive, rather than having them learn about it when you’re no
longer around. Indeed, we often recommend holding a family meeting (which we
can help facilitate) to go over everything with all impacted parties.
contests originated by disgruntled loved ones, the potential for your will or
trust to cause dispute is significantly increased if you have a blended family.
If you are in a second (or more) marriage, with children from a prior marriage,
there’s an inherent risk of dispute because your children and spouse often have
To reduce the likelihood of dispute, it’s crucial that your plan contain clear and unambiguous terms spelling out the beneficiaries’ exact rights, along with the rights and responsibilities of executors and/or trustees. Such precise terms help ensure all parties know exactly what you intended.
If you have a
blended family, it’s also essential that you meet with all affected parties
while you’re still alive (and of sound mind) to clearly explain your wishes in
person. Sharing your intentions and hopes for the future with your spouse and
children is key to avoiding disagreements over your true wishes for them.
Prevent disputes before they happen The best way to deal with estate planning disputes is to do everything possible to make sure they never occur in the first place. This means working with a trusted attorney to put planning strategies in place aimed at anticipating and avoiding common sources of conflict. Moreover, it means constantly reviewing and updating your plan to keep pace with your changing circumstances and family dynamics.
Dedicated to empowering your family, building your wealth and defining your legacy,
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