Category: Living Trust

Do a Google search for “digital wills” or “online estate planning,” and you’ll find dozens of different websites offering low-cost, do-it-yourself (DIY) and sometimes even free estate planning documents, such as wills, trusts, powers of attorney, and healthcare directives.

From LegalZoom® and Rocket Lawyer® to TrustandWill.com and FreeWill.com, these DIY legal documents may seem like a cheap and easy way to finally cross estate planning off your to-do list—and do so without having to pay a lawyer big bucks to assist you. After all, you’ve been able to prepare and file your taxes online for years, is estate planning really that much different? And aren’t lawyers using the very same forms you find on these DIY document websites? 

An Inconvenient Truth

This kind of thinking is exactly what DIY and online estate planning services would like you to believe, but it’s far from true. In fact, relying on DIY or online estate planning documents can be one of the costliest mistakes you can make for your loved ones.

Keep in mind, just because you created “legal” estate planning documents that doesn’t mean they will actually work when you—or most importantly, the people you love—need them. Without a thorough understanding of your family dynamics, the nature of your assets, and how the legal process works upon your death or incapacity, you are likely to make serious mistakes when creating a DIY or online estate plan.

Even worse, these mistakes won’t be discovered until it’s too late—and the loved ones you were trying to protect will be the very ones forced to clean up your mess or get stuck in a costly and traumatic court process that can drag out for months or even years.

In the end, relying on DIY or online estate planning documents can actually be worse than having no estate plan at all—and here’s why:  

A False Sense Of Security

Creating your estate plan using online document services can give you a false sense of security—you think you’ve got estate planning covered, when you most likely do not. DIY plans may even lead you to believe that you no longer need to worry about estate planning, causing you to put it off creating a proper plan off until it’s too late.

In this way, relying on DIY estate 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, estate planning would likely remain at the front of your mind, where it rightfully belongs until it’s been handled by you and trusted counsel to guide you.

Planning To Fail

The primary 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 document services become more and more popular, millions of people are learning—or will soon learn—that taking the DIY route can not only fail to achieve this purpose, it can make things even more complex and costly for the people you love.

Most people assume that estate planning is all about filling out the right legal documents. But in reality, the true value of estate planning is not about the documents themselves—it’s the planning aspect that’s most important, not the documents. Documents are the byproducts of the plan and the outcome of counseling and decisions that require thought, consideration, and a true understanding of all the options and their potential consequences.

Without proper planning and consideration, the documents themselves—wills, trusts, health care directives, and powers of attorney—aren’t worth the paper they’re printed on. And by proper planning, we mean having a trusted advisor who can help you anticipate all of the potential problem areas and conflicts—as well as potential opportunities—that could impact your plan, and then help you adapt your plan accordingly and create documents to ensure the maximum benefit (and minimum heartache) for your loved ones. 

When done right, the value of this kind of estate planning is truly priceless because it results in the right plan for your family at the right budget for you, and it leaves your loved ones with not just a set of documents, but with a trusted advisor who will be there for them when you cannot be. And this is exactly what we as a Personal Family Lawyer® firm provide every client we serve through our Life & Legacy Planning Process. 

In a future article, we will go into detail about how our planning services work, but first let’s look at how DIY planning can go wrong by looking at five of the most common failures you are likely to encounter when using online DIY estate planning documents, instead of working with a lawyer.

One Size Does Not Fit All

“In preparing for battle, I have always found that plans are useless, but PLANNING is indispensable.”

-Dwight D. Eisenhower, Former U.S. President and Commander of Allied Forces during WWII

A typical set of documents that you get from an online DIY estate planning service (and even many estate plans created by lawyers) will usually include three to five basic legal documents: a will, a financial power of attorney, a healthcare directive, possibly a trust, and a legal guardian nomination, if you have minor children. By now, it’s fairly common knowledge that these are the legal documents needed in case you become incapacitated or when you die.

But what isn’t common knowledge and what isn’t adequately covered by any online legal document service or even by many lawyers is what needs to go into those documents, and what’s needed to ensure those documents actually work for the people you love when they need them.

You see, standard documents simply cannot address the real-life complexities of your family dynamics, your assets, and the ever-changing circumstances of your life. Contrary to what the DIY services would like you to believe, estate planning is not a one-size-fits-all, once-and-done kind of deal. Even if you think your particular assets and family situation are simple, that turns out to almost never be the case, and you are likely to face one of the following issues that can leave your loved ones at risk.

5 Ways Your DIY Estate Plan Can Fail

Number 1 Way Your DIY Estate Plan Can Fail: Thinking A Will Is Enough
One of the ironic things about estate planning is that the one legal document everyone thinks they need most is the one legal document that actually accomplishes the least. Yes, you know you need a will, but a will alone doesn’t do much. 

A will can ensure the people you choose are the ones who handle your affairs and who ensure your assets go where you want them to go in the event of your death. But a will does not keep your family out of court. In fact, relying on a will alone ensures your family and friends have to go to court when you die. Plus, a will doesn’t even come into play if you are incapacitated. And if you have minor children, relying on a will alone to designate their legal guardians could leave your kids vulnerable to being taken out of your home and into the care of strangers.

Number 2 Way Your DIY Estate Plan Can Fail: Improper Execution
You could have the best documents in the world, but if you fail to sign them, or sign them improperly, they will fail. It may seem silly, but it’s true. We’ve seen family after family who brought us an estate plan after the death or incapacity of a loved one that we were not able to support them and act upon because the documents were either not signed, or were signed improperly.

To be considered legally valid, certain estate planning documents like wills must be executed (i.e. signed, witnessed, and/or notarized) following very strict legal procedures. For example, many states require 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 condition (or you don’t read the fine print) and you fail to follow this procedure, the document can end up worthless.

If you have created or started a DIY estate plan and wish to have it reviewed, contact us, your local Personal Family Lawyer® to see how you can get a Family Wealth Planning Session™ at no cost to you. During this 2-hour session, we will review what would happen to your family and your assets with your current plan and discuss the best next steps for protecting your family. 

Next week in part two of this series, we will cover the remaining three ways your DIY estate plan can fail and leave your family at risk. 

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

No matter how well you think you know your loved ones, it’s impossible to predict exactly how they’ll behave when you die or if you become incapacitated. No one wants to believe that their family members would ever end up fighting one another in court over inheritance issues or a loved one’s life-saving medical treatment, but the fact is, we see it all the time.

Family dynamics are extremely complicated and prone to conflict even during the best of times. But when tragedy strikes a member of the household, even minor tensions and disagreements can explode into bitter conflict. And when access to money (or even quite often, sentimental items of furniture or jewelry) is on the line, the potential for discord is exponentially increased. Ultimately, there is no greater cost to families than the cost of lost relationships after the death or incapacity of a loved one.

The good news is you can dramatically reduce the chances for conflict in your family by working with an experienced estate planning lawyer, who understands and can anticipate these dynamics. In fact, preventing family conflict is one of the primary reasons to work with us, as your Personal Family Lawyer®, to create your estate plan, rather than relying on do-it-yourself estate planning documents. After all, even the best set of documents will be unable to anticipate and navigate such complex emotional matters—but we can.

By becoming aware of some of the leading causes of conflict over your estate plan, you’re in a better position to prevent those situations through effective planning. Though it’s impossible to predict how your loved ones will react to your estate plan, the following issues are among the most common catalysts for conflict.

Poor Fiduciary Selection

Many estate planning disputes occur when a person you’ve chosen to handle your affairs following your death or incapacity fails to properly carry out his or her responsibilities. Whether it’s as your power of attorney agent, executor, or trustee, these roles can entail a variety of different duties, some of which can last for years.

The individual you select, known as a fiduciary, is legally required to execute those duties and act in the best interests of the beneficiaries named in your plan. The failure to do either of those things is referred to as a breach of fiduciary duty.

The breach can be the result of the person’s deliberate action, or it could be something they do unintentionally by mistake. Either way, a breach—or even the perception of one—can cause real and understandable conflict between your loved ones. This is especially true if the fiduciary attempts to use the position for personal gain, or if the improper actions negatively impact the beneficiaries.

Common breaches include failing to provide required accounting and tax information to beneficiaries, improperly using estate or trust assets for the fiduciary’s personal benefit, making improper distributions, and failing to pay taxes, debts, and expenses owed by the estate or trust.

If a suspected breach occurs, beneficiaries can sue to have the fiduciary removed, recover any damages they incurred, and even recover punitive damages if the breach was committed out of malice or fraud.

Solution: Given the potentially immense responsibilities involved, you must be extremely careful when selecting your fiduciaries, and make sure everyone in your family knows why you chose the person you did, and that the person you choose knows how to do the job—and do it well. You should only choose the most honest, trustworthy, and diligent individuals, and be careful not to select those who might have potential conflicts of interest with beneficiaries.

Furthermore, it’s crucial that your estate planning documents contain clear terms spelling out a fiduciary’s responsibilities and duties, so the individual understands exactly what’s expected of him or her. And should things go awry, you can add terms to your plan that allow beneficiaries to remove and replace a fiduciary without going to court.

As your Personal Family Lawyer®, we can assist you with selecting the most qualified fiduciaries; drafting the most precise, explicit, and understandable terms in all of your planning documents; as well as ensuring that your family understands your choices, so they do not end up in conflict when it’s too late. In this way, the individuals you select to carry out your wishes will have the best chances of doing so successfully—and with as little conflict as possible.

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. This would likely be disastrous for everyone involved, especially your intended beneficiaries.

However, just because someone disagrees with what they 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, they must prove that your plan is invalid (and should be thrown out) based on one or more of the following legal grounds:

• 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.

Additionally, only those individuals with “legal standing” can contest your will or trust. 

Just because someone was intimately involved in your life, even a blood relative, doesn’t automatically mean they can legally contest your plan.

Those with 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, and 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 we’re addressing here.

Here, we’re addressing—and seeking to prevent—contests that 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 relationship.  

First off, working with an experienced lawyer like us is critically important 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 true if you’re seeking to disinherit or favor one member of your family over another.  

Some of the leading reasons for unhappiness include having a plan that benefits some children more than others, as well as when your plan benefits friends, unmarried domestic partners, 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 to prevent them from being negatively affected by the sudden windfall.

In these 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.

Blended Families Increase Likelihood For Conflict

Outside of 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 relationship, your children and spouse often have conflicting interests, which can lead to conflict. 

Solution: To reduce the likelihood of dispute, it’s crucial that your estate 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.

Additionally, if you have a blended family, it’s absolutely essential that you meet with all affected parties while you’re still alive (and of sound mind) to clearly explain your wishes directly, if you hope for your loved ones to love each other after you are gone. Sharing your intentions and hopes for the future with your new spouse and children from a prior relationship is hugely important to avoid disagreements over your wishes for them

When it comes to inheriting your estate, your new spouse and your children from a prior marriage have inherently conflicting interests. For one, if your new spouse inherits everything you have when you die, your children from a prior marriage could receive nothing when your new spouse dies, unless you’ve planned in advance to ensure your assets are held in trust for your new spouse to be used during his or her life, and then stipulated that the balance should mandatorily pass to your children upon your spouse’s death.

But that creates yet another potential conflict.

For example, your new spouse may choose to invest the assets conservatively, ensuring they have enough money to live comfortably for a few more decades instead of investing assets for growth. However, the children—particularly if they are younger—might be better off having the assets placed into higher-risk investments, which can offer better returns in the long run, but leave less income for the surviving spouse.

In that case, it’s best to name a neutral third party as successor trustee, so both the children and surviving spouse’s interests can be balanced fairly. 

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 us, your Personal Family Lawyer® 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.

Whether the potential dispute arises from disgruntled heirs, sibling rivalries, or the conflicting interests of members of your blended family, as your Personal Family Lawyer®, we are specifically trained to predict and prevent such conflicts. Meet with us today to learn more.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

When you hear the words, “trust fund,” do you conjure up images of stately mansions and party yachts? A trust fund – or trust – is actually a great estate planning tool for many people with a wide range of incomes who want to accomplish a specific purpose with their money.

Simply put, a trust is just a vehicle used to transfer assets, and trusts are especially useful for parents of minor children as well as those who wish to spare their beneficiaries the hassle of going to Court in the event of their incapacity or death.

And why would you want to keep your family out of court (known as avoiding probate)?

Perhaps you’d like to keep private the details of the assets you are leaving your heirs. Leaving assets via a will that must go through probate to go into effect makes your estate a matter of public record. A trust is a private document and distributes assets upon your death without the need for probate, which can tie up assets for a long period of time in court.

The court process can take longer than is necessary and keep your family from getting access to your assets as quickly as they want or need them.

If you have minor children, you need to create a trust in order to leave your assets to them since minors cannot inherit directly. You will want to name a trustee to manage those assets for your children. Even if your children are adults, a trust can help protect assets you leave for them from creditors, legal judgments, divorce, or even their poor money management habits.

You can even establish a trust for yourself in case you become incapacitated and cannot manage your own finances at some future time. The trust assets are managed by a successor trustee, which avoids the need for a court-appointed conservator if you become incapacitated.

Trusts are also wonderful tools for those who are members of a blended family. If you are remarried and have children from a previous marriage, you can provide for your current spouse while ensuring your assets pass to your children from another marriage using a by-pass trust. 

With this kind of trust, the assets will pass to your children free of estate tax upon the death of your surviving spouse.

As you can see, there are many reasons to create a trust, and being rich isn’t necessarily one of them. You can learn more about how a trust might benefit you or your family by scheduling a Family Wealth Planning Session™, where we can identify the best strategies that are unique to you and your family.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

When it comes to estate planning, most people automatically think about taking legal steps to ensure the right people inherit their stuff when they die. Although that thought is not wrong, it also leaves out a very important piece of planning for life, and perhaps the most critical part of planning.

Planning that’s focused solely on who gets what when you die is ignoring the fact that death isn’t the only thing you must prepare for. Rather,  consider that at some point before your eventual death, you could be incapacitated by accident or illness.

Like death, each of us is at constant risk of experiencing a devastating accident or disease that renders us incapable of caring for ourselves or our loved ones. But unlike death, which is by definition a final outcome, incapacity comes with an uncertain outcome and timeframe. 

Incapacity can be a temporary event from which you eventually recover, or it can be the start of a long and costly event that ultimately ends in your death. Indeed, incapacity can drag out over many years, leaving you and your family in agonizing limbo. This uncertainty is what makes incapacity planning so incredibly important.

In fact, incapacity can be a far greater burden for your loved ones than your death. This is true not only in terms of its potentially ruinous financial costs, but also for the emotional trauma, contentious court battles, and internal conflict your family may endure if you fail to address it in your plan. 

The goal of effective estate planning is to keep your family out of court and out of conflict no matter what happens to you. So if you only plan for your death, you’re leaving your family—and yourself—extremely vulnerable to potentially tragic consequences.

Where to start

Planning for incapacity requires a different mindset and different tools than planning for death. If you’re incapacitated by illness or injury, you’ll still be alive when these planning strategies take effect. What’s more, the legal authority you grant others to manage your incapacity is only viable while you remain alive and unable to make decisions about your own welfare. 

If you regain the cognitive ability to make your own decisions, for instance, the legal power you granted others is revoked. The same goes if you should eventually succumb to your condition—your death renders these powers null and void.

To this end, the first thing you should ask yourself is, “If I’m ever incapacitated and unable to care for myself, who would I want to make decisions on my behalf?” Specifically, you’ll be selecting the person, or persons, you want to make your healthcare, financial, and legal decisions for you until you either recover or pass away.

You must name someone

The most important thing to remember is that you must choose someone. If you don’t legally name someone to make these decisions during your incapacity, the court will choose someone for you. And this is where things can get extremely difficult for you and your loved ones.

Although laws differ by state, in the absence of proper estate planning, the court will typically appoint a guardian or conservator to make these decisions on your behalf. This person could be a family member you’d never want managing your affairs, or a professional guardian who charges exorbitant fees, and could even potentially decimate your estate. Either way, the choice is out of your hands.

Furthermore, like most court proceedings, the process of naming a guardian is often quite a time-consuming, costly, and emotionally draining task for your family. If you’re lying unconscious in a hospital bed, the last thing you’d want is to waste time or impose additional hardship on your loved ones. And this is assuming your family members agree about what’s in your best interest.

For example, if your family members disagree about the course of your medical treatment, this could lead to ugly court battles between your loved ones. Such conflicts can tear your family apart and drain your estate’s finances. And in the end, the individual the court eventually appoints may choose treatment options, such as invasive surgeries, that are the exact opposite of what you’d actually want.

This potential turmoil and expense can be easily avoided through proper estate planning. An effective plan would give the individuals you’ve chosen immediate authority to make your medical, financial, and legal decisions, without the need for court intervention. What’s more, the plan can provide clear guidance about your wishes, so there’s no mistake or conflict about how these vital decisions should be made.

What won’t work

Determining which planning tools you should use to grant and guide this decision-making authority depends entirely on your personal circumstances. There are several options available, but choosing what’s best is something you should ultimately decide on after consulting with an experienced lawyer like us.

That said, we can tell you one planning tool that’s totally worthless when it comes to your incapacity: a will. A will only go into effect upon your death, and then it merely governs how your assets should be divided, so having a will does nothing to keep your family out of court and out of conflict in the event of your incapacity. 

The proper tools for the job

There are multiple planning vehicles to choose from when creating an incapacity plan. And this shouldn’t be just a single document; instead, it should include a comprehensive variety of multiple planning tools, each serving a different purpose. 

Though the planning strategies you ultimately put in place will be based on your particular circumstances, it’s likely that your incapacity plan will include some, or all, of the following:

Healthcare power of attorney: An advanced directive that grants an individual of your choice the immediate legal authority to make decisions about your medical treatment in the event of your incapacity.

Living will: An advanced directive that provides specific guidance about how your medical decisions should be made during your incapacity.

Durable financial power of attorney: A planning document that grants an individual of your choice the immediate legal authority to make decisions related to the management of your finances, real estate, and business interests. 

Revocable living trust: A planning document that immediately transfers control of all assets held by the trust to a person of your choosing to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed and even spell out specific conditions that must be met for you to be deemed incapacitated. 

While each of these documents is important, they are often of limited usefulness without the counsel and guidance of a personal lawyer who knows you, knows what’s important to you, knows how to locate your assets, and who can guide your family when they don’t know where to turn.

Don’t let a bad situation become much worse 

You may be powerless to prevent your potential incapacity, but estate planning — which we prefer to call Life and Legacy Planning because it’s about so much more than just your “estate” — can at least give you control over how your life and assets will be managed if it does occur. Moreover, such planning can prevent your family from enduring needless trauma, conflict, court intervention, and expense during an already trying time. 

If you’ve yet to plan for incapacity, meet with us as your Personal Family Lawyer® right away. We can counsel you on the proper planning vehicles to put in place, and help you select the individuals best suited to make such critical decisions on your behalf. If you already have planning strategies in place, we can review your plan to make sure it’s been properly set up, maintained, and updated. Contact us today to get started.

This article is a service of [name], Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

As you likely already know, but may not have given much thought about, the most important inheritance you provide is so much more than the money you’ll leave behind, but also includes your values, insights, stories, and experience. And, while those things are being passed on happenstance on the daily, we know that intentionally creating a Family Wealth Legacy requires more than happenstance. That’s why as a Personal Family Lawyer®, part of our unique planning process is to capture your legacy in recorded form through something we call a Family Wealth Legacy Interview. 

What we’ve discovered is that we can learn so much more than expected — about ourselves and our loved ones – when we ask the right questions. 

So, this year, we invite you to ask your mother, father, and/or another loved one the 32 important questions below that can teach you valuable lessons about love, life, and what matters most. And, don’t just ask them, record their answers to create your own Family Wealth Legacy. Or, contact us to schedule time for a comprehensive Family Wealth Planning Session this month, and we’ll create a Family Wealth Legacy as part of your estate plan.

Use these questions as a springboard and an engaging activity during the holidays and discover what you didn’t know about your loved ones:

1. What comes to mind when you think about growing up in your hometown?

2. What did you love to do as a kid, before high school?

3. What did you love to do in high school?

4. What do you remember most about your teenage years?

5. What do you remember most about your mom (grandma)?

6. What was most important to her?

7. What do you remember most about your dad (grandpa)?

8. What was most important to him?

9. If Grandma and Grandpa had a message to pass along to the grandchildren, what would it be?

10. How did you meet your spouse? How did you know (s)he was the one?

11. How did you choose your career? What was your favorite part about it?

12. What made you successful?

13. What did you believe about yourself that helped you become successful and deal with hard times?

14. What times in your life truly “tested your mettle,” and what did you learn about yourself by dealing (or not dealing) with them?

15. What three events most shaped your life?

16. What do you remember about when I was born?

17. Were you ever scared to be a parent?

18. What three words would you say represented your approach to parenting and why?

19. When you think about [sibling] how would you describe him/her?

20. What message do you have for [sibling] that you want him/her to always keep in mind?

[Do the last two questions above for each sibling in your family]

21. When you think about [spouse], how would you describe her/him?

22. What message do you have for [spouse] that you want her/him to always keep in mind?

23. What three words would you say best describe who you tried to be in life? How would you like to be remembered?

24. What do you think your children and grandchildren should focus on professionally?

25. What have you learned about people in life?

26. What do you think the world needs more of right now?

27. What do you believe people want the most in life?

28. What were the three best decisions you ever made?

29. What are you most proud of?

30. What were five of the most memorable moments of your life?

31. What message would you like to share with your family?

32. What are you most thankful for?

These questions can reveal a wealth of valuable life lessons – family treasures to discuss and share with generations to come. But having this conversation is just a start. To preserve and protect your family assets and other things of value, you should create a comprehensive estate plan that will safeguard what you value most. And, we include a recorded Family Wealth Legacy Interview, which becomes a priceless family legacy piece for your loved ones, with every estate plan we create. Because we’ve discovered that estate planning is really a misnomer; when done right, it’s Life and Legacy Planning — planning for a life you love and a legacy worth leaving.

As your Personal Family Lawyer®, we can guide you to create a comprehensive estate plan — which we prefer to call and see as a Life and Legacy Plan because it’s about so much more than just your “estate” —  that protects and preserves your most valuable assets. Before the session, we’ll send you a Family Wealth Inventory and Assessment to complete that will get you thinking about what you own, what matters most to you, and what you want to leave behind. Contact us today to schedule your Family Wealth Planning Session.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We don’t just draft documents, we ensure you make informed and empowered decisions about life and death, for yourself and the people you love.  That’s why we offer a Family Wealth Planning Session™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. Begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

If you are like many homeowners, your home is likely your family’s most valuable and treasured asset. In light of this, you want to plan wisely to ensure your home will pass to your heirs in the most efficient and safe manner possible when you die or in the event you become incapacitated by illness or injury. 

Indeed, proper estate planning is as much a part of responsible homeownership as having homeowners insurance or keeping your home’s roof well maintained. When it comes to including your home in your estate plan, you have a variety of different planning vehicles to choose from, but for a variety of different reasons, putting your home in a trust is often the smartest choice. 

In part one, we explained how revocable living trusts and irrevocable trusts work, and we discussed the process of transferring the legal title of your home into a trust to ensure it’s properly funded. Here in part two, we will outline the key advantages of using a trust to pass your home to your loved ones compared to other estate planning strategies.

The Benefits Of Putting Your Home In A Trust

While both wills and trusts are the most commonly used estate planning vehicles to pass on wealth and other assets to your loved ones, putting your home in a trust has a number of distinct benefits compared to using a will.

Avoiding Probate

One of the primary advantages of using a trust to pass on your home to your heirs is the avoidance of the court process known as probate. Unlike a will, assets held in trust do not have to go through probate. During probate, the court oversees the will’s administration, ensuring your assets are distributed according to your wishes, with automatic supervision to handle any disputes.

However, probate can be a long and expensive process, which can be emotionally draining for your loved ones. Depending on the complexity of your estate, 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. Plus, probate is open to the public, which can make things risky for those you leave behind, especially if the wrong people take an interest in your family’s affairs.

Unlike a will, if your trust is properly set up and maintained, your family won’t have to go through probate to inherit your home. Instead, your home will immediately pass to your loved ones upon your death, without the need for any court intervention. Avoiding the delay of probate can be especially critical when it comes to a home to ensure the property is properly maintained, since the home may fall into disrepair while probate is being completed. 

Finally, unlike wills, trusts remain private and are not part of the public record. So, with a properly funded trust, the entire process of transferring ownership of your home can happen in the privacy of your Personal Family Lawyer®’s office, not a courtroom, and on your family’s time.

Protection Against Incapacity

In addition to passing on your home to your loved ones when you die, putting your home in a trust can also protect your home in the event you become incapacitated by serious illness or injury. In contrast, a will only goes into effect upon your death, so it would be useless for protecting your home in the event you become incapacitated.

If you do become incapacitated with only a will in place, your family will have to petition the court to appoint a conservator or guardian to manage your affairs related to homeownership, including paying your mortgage and property taxes, keeping up with your home’s general maintenance, and overseeing the sale of your home. Like probate, the process of petitioning the court to appoint a conservator or guardian can be costly, time-consuming, and stressful.

And there’s always the possibility that the court could appoint a family member as a guardian that you’d never want to manage your family home. Or the court might select a professional guardian, putting a total stranger in control of your family’s most precious asset and leaving it vulnerable to crooked guardians, who could potentially sell your home for their personal financial gain.

With a trust, however, you can include provisions in the terms of the trust that appoint someone of your choosing—not the court’s—as successor trustee to manage your home’s ownership and/or sale if you’re unable to do so yourself due to incapacity. For example, your trust could authorize your successor trustee to sell your home in order to pay for the costs of long-term care should you require it.

Control Over Asset Distribution

Because you can include specific instructions in a trust’s terms for how and when the assets held by the trust are distributed to a beneficiary, a trust can offer greater control over how your assets are distributed compared to a will. 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 marriage, or when the beneficiary reaches a certain age.

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. And as we mentioned earlier, as long as the assets are held in trust, they’re protected from the beneficiaries’ creditors, lawsuits, and divorce, which is something else wills don’t provide. 

Avoiding Family Conflict

If you leave your home to your loved ones using a will and you designate more than one person to inherit the property, there’s a potential for conflict because each individual gets an undivided interest in the home. Given this, these individuals must agree on what to do with the home—keep it or sell it—and they may not see eye-to-eye, which can create unnecessary drama that can tear your family apart.

For example, if one of your children wants to keep the home and live in it, but the other prefers to sell it in order to pay off their debts, the child who wants to sell could go to court in order to force their sibling to sell the property. However, this potential for conflict can be avoided by putting your home in a living trust.

If you name more than one beneficiary for your home in your living trust, you can name a neutral third-party as successor trustee to decide what happens to the home, and then manage the distribution after a clear determination is made. For example, the trustee could allow one child to live in the home, while the other could receive other estate assets of equal value, or the trustee could come up with some alternative solution to stave off the potential for conflict. 

Transfer On Death Deed

In some states you can use what’s known as a Transfer On Death (TOD) deed in order to transfer ownership of your home to your heirs without the need for probate. Initially created as an inexpensive alternative to living trusts, a TOD deed allows named beneficiaries to assume ownership of your home without undergoing probate or trust administration.

However, TOD deeds come with some major drawbacks, and they may end up creating unintended problems for your loved ones. To this end, before you rely on a TOD deed as a cheaper alternative to passing your house via a trust, consider the following factors:

• If your property is held joint tenancy, your joint tenant becomes the sole owner upon your death and has full control of the property, and your TOD deed would be inapplicable.
• Unlike with a living trust, a TOD deed cannot be used to manage, sell, or borrow against the property during your incapacity. This means that if you become incapacitated, the beneficiary of your TOD deed would be unable to access your home in order to sell or refinance the property to pay for your care, as your trustee could if you had the property in a living trust.
• If the beneficiary of the TOD deed is a minor upon your death, a court-appointed guardian will need to be named to control your property until the child reaches legal age. With a living trust, however, the person you named as successor trustee can manage the property until your child reaches legal age.
• Using a TOD deed in order to transfer ownership of your home to try and lower the value of your assets doesn’t count as a Medicaid spend-down, so it will not help you qualify for the program. Plus, depending on the state, the property may even be subject to the Medicaid Estate Recovery Program (MERP) after you die. As mentioned earlier, if you want to qualify for Medicaid and protect your home from MERP, meet with your Personal Family Lawyer® to discuss creating an irrevocable trust. 

Given these potential complications, using a TOD deed to transfer ownership of your home as an alternative to a living trust is almost never a good idea. Instead, your Personal Family Lawyer®, can help you find better ways to transfer ownership of your home that will keep your family out of court and out of conflict.

Find The Solution That’s Right For Your Family

Although putting your home in a living trust can be an ideal way to pass your home to your loved ones, each family’s circumstances are different. This is why your Personal Family Lawyer® will not create any documents until we know what you actually need, and what will be the most affordable solution for you and your family—both now and in the future—based on your family dynamics, assets, and desires.

The best way for you to determine whether or not your estate plan should include a will, a trust, or some combination of the two is to meet with your Personal Family Lawyer® for a Family Wealth Planning Session, which is the first step in our Life & Legacy Planning Process. During this process, we’ll take you through an analysis of your assets, what’s most important to you, and what will happen to your loved ones when you die or if you become incapacitated.

Sitting down with a Personal Family Lawyer® will empower you to feel 100% confident that you have the right combination of estate planning solutions to fit with your unique asset profile, family dynamics, and budget. In fact, we see estate planning as so much more than planning for death, which is why we call it Life & Legacy Planning—it’s about your life and the legacy you are creating by the choices you make today. Contact us today to learn more.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

If you are like many homeowners, your home is likely your family’s most valuable and treasured asset. In light of this, you want to plan wisely to ensure your home will pass to your heirs in the most efficient and safe manner possible when you die or in the event you become incapacitated by illness or injury. 

Indeed, proper estate planning is as much a part of responsible homeownership as having homeowners insurance or keeping your home’s roof well maintained. When it comes to including your home in your estate plan, you have a variety of different planning vehicles to choose from, but for a variety of different reasons, putting your home in a trust is often the smartest choice. 

Although you should consult with us your Personal Family Lawyer® to identify the best estate planning strategies for your particular circumstances, in this two-part series we’ll discuss how trusts work (both revocable and irrevocable), and then outline the most common advantages of using a trust to pass your home to your loved ones compared to other planning strategies.

What Is A Trust?

In simplest terms, a trust is an agreement between the “Grantor” (the person who puts assets into the trust) and the “Trustee” (the person who agrees to hold those assets) to hold title to assets for the benefit of the “Beneficiary.” Now, when the trust is a Revocable Living Trust, this agreement is typically made between YOU as the Grantor, and YOU as the Trustee, for the benefit of YOU as the beneficiary.

Why would you want to make an agreement with yourself, to hold title to assets for yourself, for the benefit of yourself? Well, it’s because by doing so you remove those assets from the jurisdiction of the court in the event you become incapacitated or when you die, and instead, you give the power to transfer those assets to your successor Trustee to handle without government or court intervention and keep it all totally private. This saves your family significant time, money, and headache.

Types of Trusts

While there are numerous different types of trusts available, when it comes to passing your home to your heirs, the two most commonly used trusts are a revocable living trust and an irrevocable trust. 

Revocable Living Trust

When using a revocable living trust, or living trust, you are free to change the trust’s terms or even terminate the trust completely at any point while you are living, thus the term “living” trust. You typically act as your own trustee during your lifetime, and then you name someone (and ideally more than one someone in succession) as a successor trustee to take over management of the trust when you die or in the event of your incapacity.

At that point, your successor trustee will be responsible for managing the assets, and eventually distributing the trust assets to your chosen beneficiaries according to the instructions contained within the trust’s terms. Because you remain in control of the assets held by a living trust, the assets are still considered part of your estate for estate tax purposes, and assets held in a living trust are not protected from your creditors or lawsuits during your lifetime. This is a very important and often misunderstood point. 

A revocable living trust does not protect your assets from creditors or lawsuits, and it has no impact on your income taxes. That said, as long as the assets are held by a living trust, they can be protected from your beneficiaries’ creditors, lawsuits, and even a divorce settlement. More on this below.

The key benefit of a living trust is to pass your assets (including, and especially your home) without any need for court or government intervention, and to ensure your home (and other assets) pass in the way you want, to the people you want. 

Irrevocable Trust

Unlike a revocable living trust, an irrevocable trust is (as the name implies), irrevocable. This means that the terms of the trust cannot be changed, and the trust cannot be terminated once it’s been executed. When you transfer assets into an irrevocable trust, you relinquish all ownership of the assets, and the trustee you have named takes total control of the assets transferred into the name of the trust. Because you no longer own the assets held by the trust, those assets are no longer considered part of your estate, and they typically won’t be subject to estate taxes upon your death, and they eventually will not be vulnerable to creditors or lawsuits, as long as the trust is properly constructed.

Although avoiding estate taxes and gaining protection from creditors and lawsuits may sound like a huge benefit, irrevocable trusts come with some serious restrictions and can be quite complex to set up. Because you no longer own the assets held in an irrevocable trust and generally cannot change the trust terms or terminate the trust once it’s been executed, putting your home in this type of trust should only be done with very clear and specific legal guidance by a lawyer who specializes in asset protection.

In light of these factors, if you are looking to set up an irrevocable trust in order to qualify for Medicaid, lower your estate tax liability, or for some other reason, meet with us to discuss your options.

Putting Your Home Into A Trust

For a trust to function properly, it’s not enough to simply list the assets you want the trust to cover. When you create your trust, you must also transfer the legal title of your home and any other assets you want held by the trust from your name into the name of the trust. Retitling assets in this manner is known as “funding” your trust.

Funding your trust properly is extremely important because if an asset, such as your home, hasn’t been properly funded to the trust, the trust won’t work, and your family will have to go to court in order to take over ownership of the property. Given this, it’s critical to work with us, your Personal Family Lawyer® to ensure your trust works as intended. 

While many lawyers will create a trust for you, few will ensure your assets are properly funded. As your Personal Family Lawyer®, we will not only make sure your home and other assets are properly titled when you initially create your trust, we will also ensure that any new assets you acquire over the course of your life are inventoried and properly funded to your trust. This will keep your assets from being lost, as well as prevent your family from being inadvertently forced into court because your plan was never fully completed.

Next week, in part two, we’ll continue with our discussion of the benefits of putting your family home in a trust.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

When it comes to estate planning, you’ve most likely heard people mention a couple of different types of wills. The most common is a “last will and testament,” which is also known simply as a “will.” But you may have also heard people talk about what’s called a “living will.”

Both terms describe important legal documents used in estate planning, but their purpose and the way in which they work is very different. Here we are going to discuss some of the most critical things you should know about living wills, and explain why having one is an essential part of every adult’s estate plan and how to get yours created or updated. 

1. What Is A Living Will?

A living will, often called an “advance healthcare directive,” is a legal document that tells your loved ones and doctors how you would want decisions related to your medical care handled in the event you become incapacitated and are unable to make such decisions yourself, particularly at the end of life. Specifically, a living will outlines the procedures, medications, and treatments you would want—or would not want—to prolong your life if you become unable to discuss such matters with doctors yourself.

For example, within the terms of your living will, you can spell out certain decisions, such as if and when you would want life support removed should you ever require it, and whether you would want hydration and nutrition supplied to prolong your life. 

Beyond instructions about your medical care, a living will can even describe what kind of food you want and who can visit you in the hospital. We’ll cover more of the specific decisions and scenarios addressed in a living will in more detail below.

2. Living Will vs Last Will & Testament

A last will and testament is used to ensure your assets are divided upon your death in the way you choose. Note that your will only deals with your assets, and it only operates upon your death. In contrast, a living will is about you, not your assets, and operates in the event of your incapacity, not your death. 

In other words, a last will tells others what you want to happen to your wealth and property after you die, while a living will tells others how you want your medical treatment managed while you are still alive. 

3. What Is An Advance Directive and How Is It the Same or Different Than a Living Will?

An “advanced directive” or “advance healthcare directive” are both general terms that describe legal documents that are related to your healthcare needs. Typically, an advance healthcare directive will include a living will (with instructions for how you want your medical care handled), and a medical power of attorney (naming the people you want making decisions for you, and giving them authority to talk with your medical team). 

4. Living Will vs Medical Power of Attorney

A medical power of attorney is the part of an advance healthcare directive that allows you to name a person, known as your “agent,” to make healthcare decisions for you if you’re incapacitated and unable to make those decisions yourself. While medical power of attorney is an advance directive that names who can make healthcare decisions in the event of your incapacity, a living will explains how your medical care should be handled. 

For example, if you become seriously ill and are unable to manage your own medical treatment, a living will can help guide your agent to make these decisions on your behalf, letting them know how you want decisions made. But it’s the medical power of attorney part of the document that says who should be making the decisions. In this way, medical power of attorney and a living will work closely together, and for this reason, they are sometimes combined into a single document.

Now, this is critically important to note: Not all living will form documents or templates include a medical power of attorney or the proper legal authorizations to give whoever you want making decisions for you (your agent) the legal authority to access your medical records. Therefore, if you are completing an online living will or advance healthcare directive, or supporting a family member to do so, make absolutely sure that the document legally names a decision-maker with at least two backup decision-makers, gives that person legal authority under HIPAA to access your medical records, AND provides specific and detailed instructions regarding how your medical care should be provided in the event of incapacity. 

5. Why Is A Living Will So Important?

A living will is a vital part of every adult’s estate plan, as it can ensure your medical treatment is handled exactly the way you want in the event you become unable to communicate your needs and wishes yourself. Additionally, a living will can prevent your family from undergoing needless stress and conflict during an already trying time.

Without a living will, your family will have to guess what treatments you might want, and your loved ones are likely to experience stress and guilt over the decisions they make on your behalf. In the worst cases, your family members could even end up battling one another in court over how your medical care should be managed.

6. Even Young People Need A Living Will

Although you may think that a living will is something that only the elderly or older people need, the fact is, you can experience a serious accident or illness at any age, which would leave you incapacitated and unable to communicate your wishes for medical care. For this reason, all adults over age 18 should have both a living will and a medical power of attorney in place.

One tragic example of just how horrific things can become when a young person becomes incapacitated without a living will in place is the case of Florida’s Terry Schiavo, who spent 15 years in a vegetative state after suffering a heart attack at age 26. Because she had neither a living will nor a medical power of attorney, Schiavo’s young husband fought her parents in court for years for permission to remove her from life support, specifically to remove the hydration and nutrition that was keeping her alive. The resulting litigation made news headlines around the world and exposed a deep divide among Americans over the right-to-die movement.

7. Decisions and Scenarios Addressed In A Living Will

A few of the most common types of decisions, treatments, and scenarios typically addressed in a living will include the following: 

• Tube feeding: You can include instructions about if and for how long you would want tube feeding used to supply you with nutrients and fluids needed to prolong your life.
• Resuscitation (CPR & DNR): Depending on whether or not you would want to be resuscitated in the event your heart stops, you can include what’s known as a Do-Not-Resuscitate (DNR) order in your living will. A DNR can also be a stand-alone document.
• Intubation & mechanical ventilation: You can state if and for how long you would want to be intubated and placed on a mechanical ventilator if you could not breathe on your own. This has become particularly important during the pandemic, since in severe COVID-19 cases, patients often require intubation, which involves putting you into a medically induced coma and inserting a tube into your windpipe, allowing oxygen to be pumped directly to your lungs using a ventilator.
• Pain management & palliative care: These are instructions about the types of pain management medications you would—or would not—want to be prescribed to you; if you want to die at home; as well as any other interventions you might want for comfort and pain management at the end of life.
• Organ/Tissue Donation: You can specify in your living will if you want to donate your organs and/or tissues for transplant following your death. Note that you will likely receive life-sustaining measures until any procedures are completed to remove your organs and tissues. 

8. Should You Do It Yourself With an Online Living Will?

While you’ll find a wide selection of generic living wills, medical power of attorney, and other advance directive documents online, you may not want to trust these do-it-yourself solutions to adequately address such critical decisions. When it comes to your medical treatment and end-of-life care, you have unique needs and wishes that just can’t be anticipated by fill-in-the-blank documents.

To ensure your directives are specifically tailored to suit your unique situation and that you actually get it done instead of just knowing you need to get it handled and never do it, work with experienced planning professionals like your Personal Family Lawyer® to create—or at the very least, review—your living will, medical power of attorney, and other documents. 

We don’t just ensure your documents get created correctly; we have processes to keep you moving forward beyond procrastination and actually get them signed (which is one of the biggest risks to your family), as good intentions alone won’t keep your family out of court and out of conflict should you become incapacitated without a signed (and updated) plan in place.

9. Communication is Vital

Even if you have the most well-thought-out and professionally prepared living will around, it won’t be worth the paper it’s printed on if nobody knows about it. Both living wills and medical power of attorney go into effect the second you sign them, so you should immediately deliver copies to your agent, your alternate agents, your primary care physician, and any other medical specialists you’re seeing.

And don’t forget to give those folks new versions whenever you update the documents and have them tear up the old documents. This is a standard part of our practice when serving our clients, so when you work with us to create your legal documents, we’ll ensure that everyone who needs to have your documents always has the latest version.

10. Don’t Wait Until It’s Too Late

Your living will and medical power of attorney must be created well before you become incapacitated and unable to make your own decisions. You must be able to clearly express your wishes and consent in order for these planning documents to be valid, as even slight levels of dementia or confusion could get them thrown out of court.

Not to mention, an unforeseen illness or injury could strike at any time, at any age, so don’t wait—contact your Personal Family Lawyer® right away to get these vital documents put in place. 

A Comprehensive Plan For Incapacity

A living will and medical power of attorney are just two of the legal documents you need as part of your overall plan for incapacity. You will also likely need other estate planning tools, such as a durable financial power of attorney and a revocable living trust, in order to have a truly comprehensive incapacity plan. We see estate planning as so much more than planning for death, which is why we call it Life & Legacy Planning—because it’s about your life and the legacy you are creating by the choices you make today.

If you’ve yet to create your incapacity plan, schedule a Family Wealth Planning Session™ right away, so as your Personal Family Lawyer®, we can advise you about the proper planning vehicles to put in place. And if you already have an incapacity plan—even one created by another lawyer—we can review it to make sure it’s been properly set up, maintained, and updated. Contact us today to get started.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

The pandemic has caused Americans to change their behavior in a number of different ways, and one of the most positive of these changes is related to estate planning. For the first time since the study’s inception, Caring.com’s 2021 Wills and Estate Planning Study found that young adults are now more likely to have an estate plan than middle-aged adults.

Specifically, the study found that in 2020 only 16% of Americans aged 18 to 34 reported having a will or another estate planning document, but in 2021, that percentage rose by 10 points to 26%—a 63% increase in just one year. Conversely, the 2021 study found that the number of 35 to 54 year-olds with an estate plan actually decreased from 27% in 2020 to 22% in 2021.

Since young adults are traditionally the least likely to engage in estate planning, the study’s results are particularly encouraging for this demographic. And the shift in behavior is largely due to the pandemic, with 45% of the 18 to 34 year-olds surveyed reporting that they were motivated by COVID-19 to get their estate plan started. Yet, it really shouldn’t take a global pandemic to motivate young people to take estate planning seriously.

In fact, all adults over age 18 should have some basic estate planning documents in place. And this is true regardless of how much money you have, whether you are married or single, and whether or not you have kids. On that note, if you are an adult of any age and the pandemic didn’t inspire you to create your estate plan, here are four reasons why you shouldn’t wait another day to get your plan started.

1. Incapacity Leaves Your Vulnerable

Most people assume estate planning only comes into play when they die, but that’s dead wrong—pun fully intended. Although planning for your eventual death is a big part of the process, it’s just as important—if not more so—to plan for your potential incapacity due to a serious accident or illness.

If you become incapacitated without an estate plan, your family would have to petition the court to appoint a guardian or conservator to manage your legal, financial, and medical affairs. This process can be extremely costly, time-consuming, and traumatic for everyone involved. Plus, the court could appoint a family member you’d never want in control of such crucial decisions (just look at what happened to Britney Spears), or the court could appoint a professional guardian, which would give a total stranger nearly complete control of your life and your assets.

As your Personal Family Lawyer®, we can help you put estate planning vehicles in place that grants the person(s) of your choice the immediate authority to make your medical, financial, and legal decisions for you in the event of your incapacity. We can also implement estate planning strategies that provide specific guidelines detailing exactly how you want your medical care to be managed during your incapacity, including critical end-of-life decisions.

While you may not be able to prevent a potential incapacity, meet with us your Personal Family Lawyer® to ensure you have control over how your life and assets will be managed if it ever does occur.

2. Control Who Inherits Your Assets

If you die without an estate plan, the court will decide who inherits your assets, and this can lead to all sorts of problems. Who is entitled to your property is determined by our state’s intestate succession laws, which hinge largely upon whether you are married and if you have children.

Spouses and children are given top priority, followed by your other closest living family members. If you’re single with no children, your assets typically go to your parents and siblings, and then more distant relatives, if you have no living parents or siblings. If no living relatives can be located, your assets go to the state.

Yet you can prevent all of this with proper estate planning and ensure your assets are distributed according to your wishes. Moreover, it’s important to note that state intestacy laws only apply to blood relatives, so your unmarried partners and/or close friends would get nothing if you fail to create a plan. If you want someone outside of your family to inherit your property, having an estate plan is an absolute must.

If you’re married with children and die with no estate plan, you might think things would go fairly smoothly, but that’s not always the case. If you’re married but have children from a previous relationship, for example, the court could give everything to your new spouse and leave your children with nothing. In another instance, you might be estranged from your kids or not trust them with money, but without a plan, state law controls who gets your assets, not you.

Or, in another situation, you and your spouse could both die, leaving assets to children who aren’t old enough to manage them, and requiring a long-term professional guardian to manage assets in ways you would never choose.

Moreover, dying without a plan could also cause your surviving family members to get into an ugly court battle over who should inherit your property. You may think this would never happen to your loved ones, but we see families torn apart by it all the time, even when there’s little financial wealth involved.

As your Personal Family Lawyer®, we can help you create a plan that distributes your assets in the exact manner you wish, taking into account your family dynamics and other contributing factors, so your death won’t be any more painful or expensive for your family than it needs to be.

3. Keep Your Family Out Of Court And Conflict

If you don’t have an estate plan—or if you only have a will (yes, even with a will)—you are forcing your family to go through probate upon your death. Probate is the court process for settling your estate, and even if you have a will, it’s notoriously slow, costly, and public. But with no plan at all, probate can be a total nightmare for your loved ones.

Depending on the complexity of your estate, probate can take months, or even years, to complete. And like most court proceedings, probate can be expensive. In fact, once all of your debts, taxes and court fees have been paid, there might be nothing left for your loved ones to inherit. And if there are any assets left, your family will likely have to pay hefty attorney’s fees and court costs in order to claim them.

Outside of these issues, the most burdensome part of probate is the frustration and anxiety it can cause your loved ones. In addition to grieving your death, planning your funeral, and contacting everyone you’re close with, your family will be stuck dealing with an overloaded court system that can be challenging to navigate even in the best of circumstances. Plus, the entire affair is open to the public, which can make things all the riskier for those you leave behind, especially if the wrong people take an interest in your family’s affairs.

Fortunately, the expense and drama of the court system can be almost totally avoided with proper planning. Using a trust, for example, we can ensure that your assets pass directly to your family upon your death or incapacity, without the need for any court intervention. And as long as you have planned properly, just about everything can happen in the privacy of our office and on your family’s time.

4. Minimize the Mess

Entirely separate from anything to do with court, conflict, or your legal documents, consider the reality of the mess you’ll leave behind if you do nothing. Look around yourself right now, what do you see? Someone would have to deal with all of that, if something happens to you, whether that something is an illness, injury, or death.

Then, imagine that same someone trying to figure out what you own, where it is, and how to access it? That’s the reality of the kind of mess you are subjecting someone you love to deal with if you do not get your affairs in order now.

With a Life and Legacy Plan in place (like the plans we create for our clients), you are minimizing the mess, providing clear instructions, and making it as easy as possible for the people you love to handle things for you, if and when something happens to you.

5. Ensure Your Kids Are Raised By the People You Trust

If you’re the parent of minor children, the most devastating consequence of having no estate plan is what could happen to your kids in the event of your death or incapacity. Without a plan in place naming legal guardians for your kids, it will be left for a judge to decide who cares for your children. And this could cause major heartbreak not only for your children but for your entire family.

You’d like to think that a judge would select the best person to care for your kids, but it doesn’t always work out that way. In fact, the judge could pick someone from your family you’d never want to raise them to adulthood. And if you don’t have any family or the family you do have is deemed unfit, your children could be raised by total strangers.

What’s more, if you have multiple relatives who want to care for your kids, they could end up fighting one another in court over who gets custody. This can get extremely ugly, as otherwise, well-meaning family members fight one another for years, making their lawyers wealthy, while your kids are stuck in the middle.

In light of these facts, if you have minor children, your number-one planning priority should be naming legal guardians to care for your children if anything should happen to you. This is so critical, we’ve developed a comprehensive system called the Kids Protection Plan® that guides you step-by-step through the process of creating the legal documents naming these guardians.

That said, naming legal guardians won’t keep your family out of court, as a judge is always required to finalize the legal naming of guardians in the event of death or incapacity of parents. But if it’s important to you who raises your kids if you can’t, you need to give the judge clear direction—and the Kids Protection Plan® does just that.

Additionally, you need to take steps to keep your kids out of the care of strangers over the immediate term, while the authorities figure out what to do if you’re incapacitated or dead. We handle that in a Kids Protection Plan®, too. And note MOST estate plans—even those created by lawyers—skip over this critical step because most lawyers aren’t well-trained on how to create plans for families with minor children. As a Personal Family Lawyer®, we’ve invested in specialized training to serve families with young children, and we are able to include Kids Protection Plans® with every plan we create.  

Get this process started right now for free by visiting our Kids Protection Plan® website, and then schedule a follow-up visit to put in place other estate planning strategies to ensure your children are fully protected no matter what happens to you.

Stop Making Excuses

While many people said that the pandemic inspired them to see a greater need for creating an estate plan, the 2021 Caring.com study also found that more than one in three Americans still don’t think that estate planning is important—or they haven’t even thought about it at all. But as we’ve outlined here, not having an estate plan can be incredibly traumatic and costly for both you and your loved ones, who will be forced to deal with the mess you’ve left behind.

You simply cannot afford to put off creating your estate plan any longer. As your Personal Family Lawyer®, we will guide you step-by-step through the planning process to ensure you’ve taken all the proper precautions to spare your loved ones from needless stress, conflict, and expense.

However, the biggest benefit you stand to gain from putting a plan in place is the peace of mind that comes from knowing your loved ones will be provided and cared for no matter what happens to you. Don’t wait another day—contact us, your Personal Family Lawyer® right now to schedule an appointment, so you can finally check this urgent task off your to-do list.

This article is a service of Marsala Law Firm, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge. 

If you’re an animal lover and have a pet of your own, you likely consider your pet to be a member of the family. And since your furry friends can provide protection, emotional support, and unconditional love, such consideration is often well deserved.

In stark contrast, the law considers your pet nothing more than personal property. That means that without plans in place, your pet will be treated just like your couch or vacuum in the event of your death or incapacity. 

For example, if you die without including any provisions for your pet’s care in your estate plan and none of your family or friends volunteer to take your pet in, your faithful companion will likely end up in an animal shelter.

While you can leave money for the care or your pet in a will, there will be no continuing oversight to ensure your pet (and the money you leave for its care) will be cared for as you wish, if you do it that way. Indeed, a person who is named as the guardian of your pet in your will could drop the animal off at the shelter and use the money to buy a new TV—and face no penalties for doing so.

What’s more, a will is required to go through a court process known as probate, which can last for years and leave your pet in limbo during that entire time. And a will only goes into effect upon your death, so if you’re incapacitated by accident or illness, it will be useless for protecting your pet.

Pet trusts

Given these limitations, the best way to ensure your animal companions are properly taken care of in the event of your death or incapacity is to create a pet trust.

Pet trusts go into effect immediately and allow you to lay out detailed, legally binding rules for how the funds in the trust can be used. Pet trusts can cover multiple pets, work in cases of incapacity as well as death, and they remain in effect until the last surviving animal dies.

Here are a few of the most important things to consider when setting up a pet trust:

Caregivers: The most important decision when creating a pet trust is naming the caretaker. The caretaker will have custody of your pet and is responsible for your pet’s daily care for the remainder of your pet’s life. As with naming a guardian for your children, make certain you choose someone you know will watch over and love your pet just as you would.

Consider the caretaker’s physical ability—naming someone elderly to raise your Great Dane puppy might be asking too much. Also make certain your pet fits in with the caretaker’s family members and other pets. Discuss your wishes ahead of time with a potential caretaker—never assume they’re willing to take on the responsibility.

In case your first-choice for caretaker is unable to take in your pet, name at least one or two alternates. If you don’t know any suitable caregivers, there are a variety of charitable groups that can provide for your pet if you’re no longer able to.

Trustees: Trustees are tasked with managing the trust’s funds and ensuring your wishes for the animal’s care are carried out in the manner the trust spells out. Given the potential conflict of interest, you may consider naming someone other than the caregiver as trustee.

In this way, you now have two people who are invested in the care of your pet—and money—are properly handled.

Caretaking instructions: At the very least, your caretaking instructions should outline your pet’s basic requirements: dietary needs, exercise regimen, medications, and veterinary care. Be sure you think about all of your pet’s future needs, including extra services like grooming, boarding, and walking.

Beyond basic care, you can also lay out instructions for just about any other special treatment you want your furry friend to receive. From sleeping arrangements and yummy treats to weekly visits to the park and favorite toys, a pet trust can provide Fido and Fluffy with whatever lifestyle you wish for them.

Finally, don’t forget to address what you want done at the end of your pet’s life, such as burial, cremation, or memorial services.

Funding: When determining how much money to put aside for your pet’s care, you should carefully consider the pet’s age, health, and care needs. Remember, you’re covering the cost of caring for the animal for the rest of its life, and even basic expenses can add up over time.

But most pet owners want their beloved pets to receive more than just the bare necessities. Given this, make sure you carefully calculate the costs for any special treatments or services you include in the trust and leave enough money to pay for them.

And if you end up leaving more money behind than needed, you can always name a remainder beneficiary, such as a family member or charity, to inherit any funds not spent on the pet.

Do right by your furry family

Consult with us as your Personal Family Lawyer® for help creating a pet trust. We can make certain that you have all of the necessary terms included in your estate plan to ensure your pet receives the kind of love and care it deserves when you’re no longer around to provide it. Contact us for more information. This article is a service of Marsala Law Firm, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.