Many middle and lower income people believe they don’t need to see a lawyer to plan their estate for various reasons – they don’t have a lot of money, certainly not enough to worry about estate taxes; they want their spouse or children to have their property anyway, and as the husband and wife own their home and everything else jointly they don’t need a will; if you have a will you must probate it and probate is expensive and time consuming; and using a lawyer to do a will is not worth the trouble and cost as you can go on-line and fill out the forms.
All of these are really just rationalizations not to do the prudent things, and we can give some reasons why estate planning with a lawyer is a better option than no estate planning, or just “filling out forms”.
First is the cost issue. I can say that in my 36 years of practicing law, I have never charged a person as much for estate planning as I have had to charge their survivors for helping them handle an estate without a will, or setting up guardianships and conservatorships. In a will and with other instruments discussed below, you get to decide all of the things that surviving family members and the courts have to decide later, and sometimes the family members even have contentious disputes – and litigation – over these unsettled issues. This frequently occurs when someone remarries with grown children by a prior marriage. This is a fertile field for litigation because the bonds of family between the widow/widower and children of an earlier marriage often dissolve after the husband/parent or wife/parent has passed away. You can avoid confusion, hard feelings, indecision and possible litigation by and between your loved ones with a few pen strokes and signatures on a Will and on Health Care Directives and Financial Power of Attorney. Here is what you can decide:
- In a Financial Power of Attorney you can decide that if you become disabled, (or at some other designated event or on and after a certain date) who will handle your business, pay your bills, deposit your checks, apply for your disability, sell any property that needs to be sold, and generally handle all of the financial issues which may arise in your lifetime. However, you must sign the power of Attorney BEFORE you become mentally disabled. If you wait, an expensive conservatorship will be required. If you execute a power of attorney without the help of a lawyer to advise you and without the required signature formalities, it may be done wrong and will not be effective when you need it. We can make sure that does not happen.
- In a Health Care Directive you can choose who you trust to obtain your health information and make decisions about your care and treatment if you are no longer able to make those decisions yourself. If you wait until you can no longer make your own decisions, you may, based on the practices of the health care facility, have to go through an expensive and time consuming Guardianship proceeding. The statutory form for this can be confusing. We can spend the time with you to make sure that you understand each paragraph of this document as you complete it.
- In a Will you decide who receives which items of property, who you wish to handle the distribution of the estate and who will be designated by you to be the conservator or trustee of the property you leave to your minor children. You can also include provisions to relieve the chosen Executor of certain unnecessary requirements of posting a fiduciary bond or providing annual reports to the court. We can explain how these provisions can benefit you and when you should use them, and we can make sure the will is correctly executed. Remember, if you execute a will without the proper formalities, the will is probably void and can be challenged.
These points apply to all alike – rich, middle income and poor – whether your estate is $10,000 or $10,000,000.
As to the costs of probate, it is generally cheaper and always more streamlined when there is a will. Remember, just because you have a will does not mean you have to probate that will. We can suggest some of the tools and procedures you can use to avoid or minimize probate, if that appears preferable and practical in your circumstances. We can also discuss the use of a tool that can put a surviving spouse or minor children ahead of creditors – and save taxes at the same time. We can also give you tips on how to coordinate your life insurance and investment accounts to make sure those funds end up where you expect to benefit your intended beneficiaries. You won’t get that type of personalized service at any on-line low-cost legal service.