Estate Planning

I chose this photo of children playing with bubbles for two reasons. First, I want every parent with minor children to prepare a will naming the child’s guardian if the last remaining parent becomes unable to care for the child due to the parent’s death or physical or mental incompetency. Second, I want to remind those “youngsters” out there, age 18 or older, that stuff can happen.

Regarding the first reason, choosing guardians for your child(ren) will prevent any uncertainty for your family. You can even choose two guardians for your minor child(ren): one who will have the child(ren) live with them and the other who will handle the finances. It’s your choice. With such an appointment by will, upon your death or your incapacity, the appointed guardian may simply file a petition in Probate Court along with the original will. A judge will not change the parent’s designated guardian unless proof is presented that the proposed guardian is “unfit”, a very difficult standard to prove. However, if there is no will, a judge will have to choose the guardian. This requires the filing of court petitions. Often there will be competing petitioners. No parent wants people competing for their children. It is much better for the parent to choose the guardian(s) rather than rely upon a costly and stressful court process with an uncertain outcome. If you don’t want to face the task of choosing, I will help you get past the “stuck” place.

Regarding the second reason, yes, we all know “stuff can happen.” Therefore, I recommend that everyone over 18 have a core estate plan. I call the core estate plan “The Big Five”, which are the will, durable power of attorney, health care proxy, HIPAA Release, and advance directive (also called the living will). Of these five documents, only the will is needed post death. The other four documents are critical if the person signing the documents becomes mentally incompetent. Without these documents, I frequently have to file guardianships and conservatorships in probate court. These court proceedings are expensive, time-consuming, and stressful for the family members. All of this can be avoided with properly drafted documents designating the best agent for each job. See my blog for more detailed information.

Lastly, for those who own their home, as opposed to renting, I ensure that a homestead has been recorded on their primary residence. A properly recorded homestead prevents a judgment creditor from forcing the sale of the primary residence to pay a court judgment. I call the homestead “the Plus One” because renters don’t need a homestead.

As a note, I often receive calls from people asking me if they are “rich enough” or “old enough” to prepare a will. I always say “yes “, as long as they are over 18 and mentally competent. If you do not have a will when you pass away, the Law of Intestate Succession takes over. This is an order to pay out your assets, no matter the amount, based on your family tree, not on whom you would prefer to receive your assets. Whether you are 18 or 80, having a will is the better option of course.

And, I will review your existing documents without charge. I recommend any changes and usually charge a fixed fee for the recommended new documents, if any. At my first client meeting I make my recommendations. If my clients choose to proceed I schedule a return date, approximately four weeks later to review and sign the estate plan. If I learn that something has to be changed at the second meeting, my staff and I can usually make the changes at that time so no time is lost. For more advanced planning, you can check out the Trusts tab and my blog.