What is it?
Most people look at estate planning the same way they do a colonoscopy or an annual physical. Good things to do. Things responsible adults should do. Things their parents or their children should do. But not things they want to take the time and money to actually DO!
What happens if you AND your spouse die in a car crash? Who takes the kids? How do they get cared for? If there is money that will go to them when they become adults, who oversees it until then? The more a person thinks about it, the more uncertain it seems.
My children are adults now. I am MUCH less worried about who is going to raise them if I meet my untimely demise. However, it does remain a worry in other aspects. Fortunately for me, my children’s father and I talked about this very issue before we had them. We discussed who would take care of our children if we pass away. After our divorce, I was confident that he could care for our children. I knew he would make sure they saw my family if anything should happen. I feel he was confident of the same.
Who needs it?
I have a client who has terminal cancer. It’s surprising he’s still able to get out and about and see to his basic needs but he soldiers on. He doesn’t want to worry anyone and I don’t think he wants to admit that his time on this earth is extremely limited. Therein lies the problem.
He needs to decide who is going to inherit his property, who isn’t, and who is going to make health care and financial decisions for him when he can’t. If this client DOESN’T make his own decisions, the state tries to do so. But, I am sure that the state’s plan is NOT what this particular client wants. Wouldn’t it make more sense for him to handle his business on his own so everything goes the way he wants it to? That’s what I want for myself. And it’s what I want for each of my clients.
What to do?
Making an estate plan while your children are young so you appoint someone to be their guardian if you and your spouse ever cannot is critical. It’s also key to ASK these proposed guardians if they would be willing to raise your children if you couldn’t. It’s a little scary to bring up, but once you get to talking about the issue with the people you select, it often ends up bringing you closer together while you are living. The saddest cases I was ever involved with were cases where parents didn’t make an estate plan before their deaths and the courts were left floundering over who to appoint as guardians for children. No court can make as good of a decision as you can for your own children.
The discussion about the proposed guardian also gives you a chance to think about what are the most important things you want a guardian to teach your children. Is the most important thing your religion? Then make sure your proposed guardians are the same religion or would be happy to take your children to every religious event that you would have taken them to. Do you value the higher education of your children? Then you need to select a guardian who sees this goal as a critical path for your child.
Who’s in charge?
Once your children are adults, the issues get more complicated. What if you have more than one child? who is the best child to act as your health care power of attorney or financial power of attorney? Who is the best child to be in charge of probating your estate? That’s the person who is in charge of finding all of your assets, paying all of your debts, and dividing your assets between your heirs the way you would have wanted. Again, this can be a tall order with parties who don’t get along and are constantly fighting with each other about all aspects about the probate of your estate. Hopefully, you have selected the sanest, most practical person–whether a child of yours or not–to get your assets and expenses calculated and divided as quickly as possible.
The time it takes for a probate to run its course, from start to finish, can be several months when a person doesn’t own much and the heirs agree on the division. Or it could take YEARS to finish. A good estate plan at the very least gives the heirs a road map to divide all the assets and still be able to speak to each other.
Plan ahead now!
The final caveat with doing an estate plan might seem silly if your talking about another person, but when you’re thinking about your OWN estate plan, it is important to be crystal clear. DO NOT LIE TO YOUR ATTORNEY ABOUT WHAT IS IN YOUR ESTATE! By this I mean, do not assume your attorney knows if you are lucky enough to have amassed significant assets. He or she can’t help you adequately if he or she doesn’t know what you have. Your attorney CAN’T tell anyone else about what’s in your estate. Just tell her the truth.