Why you must have an estate plan
If you believe estate planning should only be addressed by senior citizens, or those with terminal conditions, or wealthy individuals, you are mistaken. The fact is every adult can benefit from estate planning regardless of age, health, or wealth. Let me repeat that sentence…every adult can benefit from estate planning regardless of age, health, or wealth.
Why you ask? Because every adult has an estate. Of course, some estates are more involved than others. Some include retirement accounts, investments, real estate, vehicles, unique collections, and other assets while others are meek and include few assets. But a well written and comprehensive estate plan addresses not only your assets at death, but it addresses “living probate;” those events that occur while you are still alive such as absence, illness, and incapacity.
Elements of an estate plan. An experienced, elder law attorney will meet and discuss your particular facts and prepare documents that address all necessary aspects of your estate plan. Some estate plans will include numerous documents. Others will be modest. At a minimum, most estate plans should include: (1) Wills or trusts; (2) Durable powers of attorney for finances; (4) Durable powers of attorney for healthcare; and (4) Advanced directives and healthcare proxies. Even the best of estate plans will cause you to take some action on your part to address supplemental estate planning strategies such as transfer on death beneficiaries, payable on death beneficiaries, and gifting events.
What occurs if you have no estate plan? So, you did not take time to execute a power of attorney for finances? Your loved ones may be unable to assist you while you are traveling, access your accounts, or pay your bills. You did not take time to execute a power of attorney for healthcare? Your loved ones may not be able to visit with medical providers or make decisions for you while you are ill. You did not take time to execute an advanced directive or healthcare proxy? Your loved ones may not be able to prevent unnecessary medical treatments or avoid a difficult end-of-life decision. You did not take time to execute a Will or trust? Missouri intestacy laws will direct who receives your assets, but a local probate judge who you may have never met will decide who becomes the personal representative of your estate without your input.
While every adult needs a comprehensive estate plan, certain life events make it especially important to work with an attorney to create those documents. Those events include the following:
You buy assets, receive money, or inherit assets. While you may not currently possess assets that warrant a comprehensive estate plan, you may in the future. When you do, a plan can ensure those assets are administered according to your wishes.
You become ill or incapacitated. Our firm has addressed hundreds of cases where someone becomes ill or incapacitated and no estate plan exists. Few of those cases were inexpensive, straightforward, and avoided family drama. By executing a power of attorney for finances and another for healthcare, you establish a plan that everyone can follow to expedite the process and avoid family disputes.
You have children. An estate plan can help you specifically address your children’s needs and ensure they receive the bulk of your estate. If your children are minors, estate planning documents can allow you to recommend a guardian for your children in the event something happens to you or their other parent. If you want to avoid your minor children receiving a bulk inheritance at age eighteen, you can establish a trust and request your trustee issue staggered payments to your children at important stages at life or at certain milestones ages.
You marry. Estate planning documents can designate your spouse as personal representative. Without such a designation or document, in rare instances, a probate judge may choose someone other than your spouse to serve as personal representative of your estate. Without a Will or trust, your current spouse will receive the amount of your estate as established by state law; however, a Will or trust can allow you to specify the amount you want your spouse and other heirs to receive. If this is not your first marriage, a Will or trust can help clarify how much you want to go to your stepchildren who would otherwise be excluded from distribution pursuant to Missouri’s intestacy laws.
Your marriage ends. If your marriage ends it is important to review your estate plan with legal counsel. If you do not have an estate plan, it is very important to create one when a marriage is dissolved. While a dissolution of marriage automatically disinherits your former spouse under Missouri law, it does not automatically remove him or her from your powers of attorney, marital trusts, non-probate transfers, and proxy documents. The same is true for beneficiary designations on life insurance policies, payable on death accounts, and transfer on death titles. Our firm is regularly employed to address cases where divorced parties forget to revise an existing estate plan and former spouses stand to receive much of their estate.
You move to another state. States often have differing laws regarding probate and the administration of an estate. It is very important to review your existing estate plan with an attorney in your new jurisdiction. Even the best plans can become problematic if they lack sufficient safeguards required by the laws of your new state.
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topic including estate planning, probate, and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been recognized as 2016 Adviser of the Year by GolfInc; Golf Tax Consultant of the Year by Boardroom Magazine three times; and “10 Best” attorneys by the American Institute of Family Law Attorneys and “10 Best” attorneys by the American Institute of Criminal Law Attorneys. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, LinkedIn, and Twitter.