Part 2: Use Estate Planning to Avoid Adult Guardianship and Elder Abuse

Part 2: Use Estate Planning to Avoid Adult Guardianship and Elder Abuse

In  Part 1 of this series, we discussed how some professional adult guardians have used their powers to abuse the seniors placed under their care. Here, we’ll discuss how seniors can use estate planning to avoid the potential abuse and other negative consequences of court-ordered guardianship.

As our senior population continues to expand, an increasing number of elder abuse cases involving professional guardians have made headlines. The New Yorker exposed one of the most shocking accounts of elder abuse by professional guardians, which took place in Nevada and saw more than 150 seniors swindled out of their life savings by a corrupt Las Vegas guardianship agency.

The Las Vegas case and others like it have shed light on a disturbing new phenomenon—individuals who seek guardianship to take control of the lives of vulnerable seniors and use their money and other assets for personal gain. Perhaps the scariest aspect of such abuse is that many seniors who fall prey to these unscrupulous guardians have loving and caring family members who are unable to protect them.

In Part 1 this series, we detailed how criminally minded individuals can take advantage of an overloaded court system and seize total control of seniors’ lives and financial assets by gaining court-ordered guardianship. Here we’ll discuss how seniors and their adult children can use proactive estate planning to prevent this from happening.

It’s important to note that any adult could face court-ordered guardianship if they become incapacitated by illness or injury, so it’s critical that every person over age 18—not just seniors—put these planning vehicles in place to prepare for a potential incapacity.

Keep your family out of court and out of conflict

Outside of the potential for abuse by professional guardians, if you become incapacitated and your family is forced into court seeking guardianship, your family is likely to endure a costly, drawn out, and emotionally taxing ordeal. Not only will the legal fees and court costs drain your estate and possibly delay your medical treatment, but if your loved ones disagree over who’s best suited to serve as your guardian, it could cause bitter conflict that could unnecessarily tear your family apart.

Furthermore, if your loved ones disagree over who should be your guardian, the court could decide that naming one of your relatives would be too disruptive to your family’s relationships and appoint a professional guardian instead—and as we’ve seen, this could open the door to potential abuse.

Planning for incapacity

The potential turmoil and expense, or even risk of abuse, from a court-ordered guardianship can be easily avoided through proactive estate planning. Upon your incapacity, an effective plan would give the individual, or individuals, of your choice 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 about how these crucial decisions should be made during your incapacity.

There are a variety of planning tools available to grant this decision-making authority, but a will is not one of them. A will only goes into effect upon your death, and even then, it simply governs how your assets should be divided. To this end, a will does nothing to keep your family out of court and out of conflict in the event of your incapacity—nor does it help you avoid the potential for abuse by professional guardians.
Your incapacity plan shouldn’t be just a single document. It should include a variety of planning tools, including 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 authority to make decisions related to the management of your financial and legal 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.
  • Family/friends meeting: Even more important than all of the documents we’ve listed here, the very best protection for you and the people you love is to ensure everyone is on the same page. As part of our planning process, we’ll walk the people impacted by your plan through a meeting that explains to them the plans you’ve made, why you’ve made them, and what to do when something happens to you. With a team of people who love you, watching out for you and what matters most, the risk of abuse from a professional guardian is low.

It could be a good idea (though it’s not mandatory) to name different people for each of the roles in your planning documents. In this way, not only will you spread out the responsibility among multiple individuals, but you’ll ensure you have more than just one person invested in your care and supervision. In that case, it’s even more critical that everyone you’ve named understands the choices you’ve made, and why you have made them.

Don’t wait to put your plan in place

It’s vital to understand that these planning documents must be created well before you become incapacitated. You must be able to clearly express your wishes and consent in order for these planning strategies 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 us right away to get your incapacity plan taken care of.

It’s crucial that you regularly review and update these planning tools to keep pace with life changes, including changes in your assets or the nature of your relationships. If any of the individuals you’ve named becomes unable or unwilling to serve for whatever reason, you’ll need to revise your plan. We can help with that, too.

Retain control even if you lose control

To avoid the total loss of autonomy, family conflict, and potential for abuse that comes with a court-ordered adult guardianship, meet with us. While you can’t prevent your potential incapacity, you can use estate planning to ensure that you at least have some control over your how your life and assets will be managed if it ever does occur.

If you haven’t planned for your incapacity, schedule a Planning Session right away, so we can advise you about the proper planning vehicles to put in place. And if you already have an incapacity plan, we can review it to make sure it’s been properly set up, maintained, and updated.

This article is a service of Myrna Serrano Setty, Esq. Myrna doesn’t just draft documents, she helps you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a 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. Call our office today to schedule a Planning Session. Mention this article and learn how to get this $500 session at no charge.

Use Estate Planning to Avoid Adult Guardianship and Elder Abuse

Do Right By Your Pet. Be careful with your Will.

Are you a pet parent? Many people consider their pets as members of their family. So it’s only natural you’d want to make sure your pet is provided for in your estate plan, so when you die or if you become incapacitated, your beloved companion won’t end up in an animal shelter or worse.

However, under the law, pets are considered personal property. So you can’t just name them as a beneficiary in your will or trust. If you do name your pet as a beneficiary in your plan, whatever money you tried to leave to it would go to your residuary beneficiary (the individual who gets everything not specifically left to your other named beneficiaries), who would have no obligation to care for your pet.

Be careful when relying on a Will

Since you can’t name your pet as a beneficiary, you might consider leaving your pet and money for its care in your will to a trusted person who would be your pet’s new caregiver. But note that your pet’s new caregiver would not be legally obligated to use the funds properly,  even if you leave them detailed instructions for your pet’s care. In fact, your pet’s new owner could legally keep all of the money for themselves and drop off your beloved friend at the local shelter.

You’d like to think that you could trust someone to take care of your pet if you leave him or her money in your will to do so. But it’s impossible to predict what circumstances might arise in the future that could make adopting your pet impossible.

Also, a will is required to go through the court process known as probate, which can last for months, leaving your pet in limbo until probate is finalized. And remember that a will only goes into effect upon your death, so if you’re incapacitated by accident or illness, it would do nothing to protect your companion.

Pet trusts offer the ideal option

Consider a pet trust in a revocable living trust in order to be completely confident that your pet is properly taken care of and the money you leave for its care is used exactly as intended.

By creating a pet trust, in a revocable living trust, you can lay out detailed, legally binding rules for how your pet’s chosen caregiver can use the funds in the trust. And unlike a will, a pet trust does not go through probate, so it goes into effect immediately and works in cases of both your incapacity and death.

Also, a  pet trust allows you to name a trustee, who is legally bound to manage the trust’s funds and ensure your wishes for the animal’s care are carried out in the manner the trust spells out. And to provide a system of checks and balances to ensure your pet’s care, you might want to name someone other than the person you name as caregiver as trustee.

In this way, you’d have two people invested in the care of your pet and seeing that the money you leave for its care is used wisely.

Do right by your pet

To ensure your pet trust is properly created and contains all of the necessary elements, meet with Myrna Serrano Setty. With Myrna’s guidance and support, you’ll have peace of mind knowing that your beloved pet will receive the kind of love and care it deserves when you’re no longer around to offer it. Contact us today to get started.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she  ensures you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why Myrna offers a 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.

Call us today at (813) 514-2946 to schedule a Planning Session. Mention this article to learn how to get this valuable session at no charge.

Case Update: Jeffrey Epstein’s Estate

When the wealthy financier, Jeffrey Epstein, died under mysterious circumstances (the Medical Examiner determined that is a suicide, but many people are skeptical), he left behind a huge fortune close to $600 million, along with creditors and lawsuits. Just two days before his death, he signed his Will, which left his estate to his trust, the 1953 Trust. Because that Trust is not filed with the Court, its contents should remain private, barring litigation involving the Trust’s beneficiaries or trustee’s duties.

In the Will, Epstein is listed as a resident of the U.S. Virgin Islands. After his death, his Will was filed in the U.S. Virgin Islands, probably because his attorneys thought the probate process would be more private.

For regular people who are not rich or famous, privacy is still a huge deal. That is why many people opt for using trusts in their estate planning, instead of just relying on a Will.

Here are some important differences between a Will and a Trust:

Will characteristics:

  • A will goes into effect only after you die
  • A will only covers property that is in your name at your death
  • A will passes through a court process called Probate. In Probate, the court oversees the will’s administration and ensures the will is valid and the property gets distributed the way the deceased wanted.
  • Because a will passes through Probate, it’s a public record.
  • A will allows you to name a guardian for children (Note: Our firm recommends that in addition to this, you use a stand alone guardian nomination.)

Trust characteristics:

  • A trust can be used to begin distributing property before death, at death or afterwards.
  • A trust covers only property that has been transferred to the trust. In order for property to be included in a trust, it must be put in the name of the trust.
  • A trust passes property outside of probate, so a court does not need to oversee the process, which can save time and money.
  • A trust remains private Unlike a will, which becomes part of the public record, a trust can remain private.

Secure your wealth, your legacy, and your family’s future

Regardless of how much or how little wealth you plan to pass on—or stand to inherit—it’s vital that you take steps to make sure that wealth is protected and put to the best use possible. As your Personal Family Lawyer®, we have unique processes and systems to help you put the proper planning tools in place to ensure the wealth that’s transferred is not only secure, but that it’s used by your loved ones in the very best way possible.

Moreover, every plan we create has built-in legacy planning services, which can greatly facilitate your ability to communicate your most treasured values, experiences, and stories with the ones you’re leaving behind. By working with us, you can rest assured that the coming wealth transfer offers the maximum benefit for those you love most.

This article is a service of the law firm of Myrna Serrano Setty, P.A. 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  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.

Call our office today to schedule a  Planning Session and mention this article to find out how to get this $500 session at no charge.

To read more about Epstein’s estate and to view a copy of the Will, you can visit the article on the NY Post’s website here.

How Will The Coming Wealth Transfer Affect Your Family?

Whether it’s called “The Great Wealth Transfer,” “The Silver Tsunami,” or some other catchy-sounding name, it’s a fact that a tremendous amount of wealth will pass from aging Baby Boomers to younger generations in the next few decades. In fact, it’s said to be the largest transfer of inter-generational wealth in history.

Because no one knows exactly how long Boomers will live or how much money they’ll spend before they pass on, it’s impossible to accurately predict just how much wealth will be transferred. But studies suggest it’s somewhere between $30 and $50 trillion. Yes, that’s “trillion” with a “T.”

A blessing or a curse?

And while most are talking about the benefits this asset transfer might have for younger generations and the economy, few are talking about its potential negative ramifications. Yet there’s plenty of evidence suggesting that many people, especially younger generations, are woefully unprepared to handle such an inheritance.

An Ohio State University study found that one third of people who received an inheritance had a negative savings within two years of getting the money. Another study by The Williams Group found that inter-generational wealth transfers often become a source of tension and dispute among family members, and 70% of such transfers fail by the time they reach the second generation.

Whether you will be inheriting or passing on this wealth, it’s crucial to have a plan in place to reduce the potentially calamitous effects such transfers can lead to. Without proper estate planning, the money and other assets that get passed on can easily become more of a curse than a blessing.

Get proactive

There are several proactive measures you can take to help stave off the risks posed by the big wealth transfer. Beyond having a comprehensive estate plan, openly discussing your values and legacy with your loved ones can be a key way to ensure your planning strategies work exactly as you intended. Here’s what we suggest:

Create a plan

If you haven’t created your estate plan yet—and far too many of you haven’t—it’s essential that you put a plan in place as soon as possible. It doesn’t matter how young you are or if you have a family yet, all adults over 18 should have some basic planning vehicles in place.

From there, be sure to regularly update your plan on an annual basis and immediately after major life events like marriage, births, deaths, inheritances, and divorce. We maintain a relationship with our clients long after your initial planning documents are signed, and our built-in systems and processes will ensure your plan is regularly reviewed and updated throughout your lifetime.

Discuss wealth with your family early and often

Don’t put off talking about wealth with your family until you’re in retirement or nearing death. Clearly communicate with your children and grandchildren what wealth means to you and how you’d like them to use the assets they inherit when you pass away. Make such discussions a regular event, so you can address different aspects of wealth and your family legacy as they grow and mature.

When discussing wealth with your family members, focus on the values you want to instill, rather than what and how much they can expect to inherit. Let them know what values are most important to you, and try to mirror those values in your family life as much as possible. Whether it’s saving money, charitable giving, or community service, having your kids live your values while growing up is often the best way to ensure they carry them on once you’re gone.

Communicate your wealth’s purpose

Outside of clearly communicating your values, you should also discuss the specific purpose(s) you want your wealth to serve in your loved ones’ lives. You worked hard to build your family wealth, so you’ve more than earned the right to stipulate how it gets used and managed when you’re gone. Though you can create specific terms and conditions for your wealth’s future use in planning vehicles like a living trust, don’t make your loved ones wait until you’re dead to learn exactly what you want their inheritance used for.

If you want your wealth to be used to fund your children’s college education, provide the down payment on their first home, or invested for their retirement, tell them so. By discussing such things while you’re still around, you can ensure your loved ones know exactly why you made the planning decisions you did. And doing so can greatly reduce future conflict and confusion about what your true wishes really are.

 Secure your wealth, your legacy, and your family’s future

Regardless of how much or how little wealth you plan to pass on—or stand to inherit—it’s vital that you take steps to make sure that wealth is protected and put to the best use possible. As your Personal Family Lawyer®, we have unique processes and systems to help you put the proper planning tools in place to ensure the wealth that’s transferred is not only secure, but that it’s used by your loved ones in the very best way possible.

Moreover, every plan we create has built-in legacy planning services, which can greatly facilitate your ability to communicate your most treasured values, experiences, and stories with the ones you’re leaving behind. By working with us, you can rest assured that the coming wealth transfer offers the maximum benefit for those you love most. Schedule a  Planning Session today to get started.

 

This article is a service of the law firm of Myrna Serrano Setty, P.A. 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  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.

Call our office today to schedule a  Planning Session and mention this article to find out how to get this $500 session at no charge.

Why You Need To Add a ‘When I Die’ File to Your Estate Plan

If you were to suddenly die today, would your loved ones know how to quickly find your estate planning documents? Would they know how to access all of your financial accounts? How about your insurance policies? What about your login and password info to all of your digital assets?

One crucial part of estate planning that frequently gets overlooked is ensuring your loved ones can easily locate all of your planning documents and other key assets upon your death or incapacity. One simple way to handle this important task is to create a “When I Die” file. According to A Beginner’s Guide to the End: Practical Advice for Living Life and Facing Death, this is a “findable file, binder, cloud-based drive, or even a shoe box where you store estate documents and meaningful personal effects.”

This new book, written by Shoshana Berger and BJ Miller, was recently featured in TIME magazine. It discusses the importance of creating such a file in order to “save your loved ones incalculable time, money, and suffering” upon your death.

Death can be a logistical nightmare

After her father died, Berger learned first-hand how agonizing it can be to not have a “When I Die” file. Though her father made his will and trust easily accessible, Berger and her sister spent nearly two years tracking down his other planning documents, assets, and finalizing his affairs.

Beger recalls “sleuthing through his file cabinet and mail and requesting what seemed like a mountain of duplicate death certificates to prove to various companies that he had actually died.”

Beyond burdening your loved ones with needless work and expense, if your planning documents, such as wills, prenuptial agreements, and insurance policies, can’t be located, it will be as if they never existed. The same goes for valuable assets like stocks, bank accounts, and other financial property no one knows about.

Given this, you should make sure your “When I Die” file contains an updated inventory of all your assets and their location. And don’t forget to include your online property in this inventory.

Don’t forget your digital assets

When it comes to digital assets like cryptocurrency, email, photos, video, and social media, your loved ones must not only be able to locate these items, they must also know how to access them. Given this, you should include any related login and password information in your “When I Die” file, along with detailed instructions about how to get into the accounts.

If you store your file online, password management apps like LastPass can greatly simplify this effort. In fact, we highly recommend you scan and upload copies of ALL the items in your “When I Die” file to the cloud and store them online. This not only makes your file much easier to access, it also prevents it from being destroyed in a fire, flood, or other natural disaster.

For detailed instructions about how to properly store and inventory digital assets, read the article  Don’t Forget To Include Your Digital Assets in Your Estate Plan.

What to include in your file

Because the TIME excerpt only includes a partial collection of the items Berger and Miller suggest including in your “When I Die” file (their book has the full list), we’ve added a few items to their list below to provide a more detailed inventory.

  • An updated inventory of all your assets and their location, including password and access info for all digital assets
  • An advance healthcare directive
  • A will and living trust (with certificate of trust)
  • Marriage or divorce certificate(s)
  • Instructions for your funeral and final disposition
  • An ethical will explaining why you made the choices you did in your real will
  • Letters, cards, photos, and other treasured sentimental items
  • If you have minor children, a Kids Protection Plan naming long and short-term guardians, along with detailed care instructions for both

Get your affairs in order—before it’s too late

Each family is unique, so this is just a minimum of what can be included in your “When I Die” file. When you work with us, we have systems in place to help ensure all of your assets are properly inventoried throughout your lifetime for the utmost convenience and care of those you love most.

And because death or incapacity can strike at any moment, don’t wait to get your affairs in order. If you do, your loved ones might experience the same lengthy ordeal Berger did when her dad died. Contact us today to get started with a  Planning Session.

This article is a service of the law firm of Myrna Serrano Setty, P.A. 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  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.

Schedule a Planning Session and mention this article to learn how to get this $500 session at no charge.

Part 2: The real cost of not planning

This article is part of a series discussing the true costs and consequences of failed estate planning. The series highlights a few of the most common—and costly—planning mistakes we encounter with clients. If the series exposes any potential gaps or weak spots in your plan, meet with us to learn how to do the right thing for the people you love.

If you’re like most people, you probably view estate planning as a burdensome necessity—just one more thing to check off of life’s endless “to-do” list.

You may shop around and find a lawyer to create planning documents for you, or you might try creating your own DIY plan using online documents. Then, you’ll put those documents into a drawer, mentally check estate planning off your to-do list, and forget about them.

The problem is, your estate plan is not a one-and-done type of deal.

In fact, if it’s not regularly updated when your assets, family situation, and/or the laws change,  your plan will be totally worthless when your family needs it.  Moreover, the failure to regularly update your plan can create its own unique set of problems that can leave your family worse off than if you’d never created a plan at all.

The following true story illustrates the consequences of not updating your plan, and it happened to the founder and CEO of New Law Business Model, Alexis Neely. Indeed, this experience was one of the leading catalysts for her to create the new, family-centered model of estate planning we use with all of our clients.

A common practice that hurt her family…. 

When Alexis was in law school, her father-in-law died. He’d done his estate planning—or at least thought he had. He paid a Florida law firm roughly $3000 to prepare an estate plan for him, so his family wouldn’t be stuck dealing with the hassles and expense of probate court or drawn into needless conflict with his ex-wife.

And yet, after his death, that’s exactly what did happen. His family was forced to go to court in order to claim assets that were supposed to pass directly to them. And on top of that, they had to deal with his ex-wife and her attorneys in the process.

Alexis couldn’t understand it. If her father-in-law paid $3,000 for an estate plan, why were his loved ones dealing with the court and his ex-wife? It turned out that not only had his planning documents not been updated, but his assets were not even properly titled.

Alexis’ father-in-law had created a trust so that when he died, his assets would pass directly to his family and they wouldn’t have to endure probate, but some of his assets had never been transferred into the name of his trust from the beginning. And since there was no updated inventory of his assets, there was no way for his family to even confirm everything he had when he died. To this day, one of his accounts is still stuck in the Florida Department of Unclaimed Property.

Alexis thought for sure this must be malpractice. But after working for one of the best law firms in the country and interviewing other top estate-planning lawyers across the country, she confirmed what happened to her father-in-law wasn’t malpractice at all. In fact, it was common practice.

When Alexis started her own law firm, she did so with the intention and commitment that she would ensure her clients’ plans would work when their families needed it and create a service model built around that.

Keep your plan updated!

We hear similar stories from our clients all the time. Indeed, outside of not creating any estate plan at all, one of the most common planning mistakes we encounter is when we get called by the loved ones of someone who has become incapacitated or died with a plan that no longer works. By the time they contact us, however, it’s too late.

We recommend you review your plan annually to make sure it’s up to date, and immediately amend your plan following events like divorce, deaths, births, and inheritances. We have built-in systems and processes to ensure your plan is regularly reviewed and updated, so you don’t need to worry about whether you’ve overlooked anything important as your life changes, the law changes, and your assets change.

You should also create (and regularly update) an inventory of all your assets, including digital assets like cryptocurrency, photos, videos, and social media accounts. This way, your family will know what you have and how to find it when something happens to you, and nothing you’ve worked so hard for will be lost to our state’s Department of Unclaimed Property.

We’ll not only help you create a comprehensive asset inventory, we help you update date it throughout your lifetime.

Properly title your trust assets

When you create a trust, it’s not enough to list the assets you want it to cover. You have to transfer the legal title of certain assets—real estate, bank accounts, securities, brokerage accounts—to the trust, known as “funding” the trust, in order for them to be disbursed properly.

While most lawyers will create a trust for you, few will ensure your assets are properly funded. We’ll not only make sure your assets are properly titled when you initially create your trust, we’ll 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.

 Keep your family out of court and out of conflict.

As your Personal Family Lawyer®, our planning services go far beyond simply creating documents and then never seeing you again. Indeed, we’ll develop a relationship with your family that lasts not only for your lifetime, but for the lifetime of your children and their children, if that’s your wish.

We’ll support you in not only creating a plan that keeps you family out of court and out of conflict in the event of your death or incapacity, but we’ll ensure your plan is regularly updated to make certain that it works and is there for your family when you cannot be. Contact us today to get started with a  Planning Session.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents.  She ensures you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a  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.

Call today to schedule a  Planning Session and learn how to get this $500 session at no charge.

The Real Cost to Your Family When You Don’t Have a Plan

When it comes to putting off or refusing to create an estate plan, your mind can concoct all sorts of rationalizations: “I don’t have time” or “What’s there to worry about? I don’t own much.”  or “My family will know what to do.”

But once you understand exactly what planning is designed to prevent and support, you’ll realize there really is no acceptable excuse for not having a plan, provided you are able to plan and truly care about your family’s experience after you die or if you become incapacitated.

The first step in creating a proper plan is to thoroughly understand the potential consequences of going without one. If you become incapacitated or die, not having a plan could be incredibly traumatic and costly for your family, who will be left to deal with the mess you’ve left behind.

While each estate and family are unique, here are some of the things most likely to happen to you and your loved ones if you fail to create any estate plan at all.

Your family will have to go to court

If you don’t have a plan, or only have a will (yes, even with a will), you’re forcing your family to go through probate upon your death. Probate is the legal 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 true 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 anyone 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.

Yet 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 a crowded 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 exponentially more arduous for those you leave behind, especially if the wrong people take an interest in your family’s affairs.

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, without the need for any court intervention. Instead, so long as you have planned properly, just about everything can happen in the privacy of our office and on your family’s time.

You have no control over who inherits your assets

If you die without a 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 on 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.

But you can change all of this with a plan and ensure your assets pass the way you want.

It’s important to note that state intestacy laws only apply to blood relatives, so unmarried partners and/or close friends would get nothing. If you want someone outside of your family to inherit your property, having a plan is an absolute must.

If you’re married with children and die with no plan, it might seem like 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 force your spouse to share with your children. 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.

Moreover, dying without a plan could also cause your surviving family members to get into an ugly court battle over who has the most right to your property. Or if you become incapacitated, your loved ones could even get into conflict around your medical care. 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 not significant financial wealth involved.

We can help you create a plan that handles your assets and your care in the exact manner you wish, taking into account all of your family dynamics, so your death or incapacity won’t be any more painful or expensive for your family than it needs to be.

You have no control over your medical, financial, or legal decisions in the event of your incapacity

Most people assume estate planning only comes into play when they die, but that’s dead wrong. Yes, pun intended.

Indeed, though planning for your eventual death is a big part of the process, it’s just as important—if not even more so—to plan for your potential incapacity due to accident or illness.

If you become incapacitated and have no plan in place, your family would have to petition the court to appoint a guardian or conservator to manage your affairs. This process can be extremely costly, time consuming, and traumatic for everyone involved. In fact, incapacity can be a much greater burden for your loved ones than your death.

We can help you put plans in in place that grant 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 planning strategies that provide specific guidelines detailing how you want your medical care to be managed, including critical end-of-life decisions.

 

You have no control over who will raise your children

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. Indeed, 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.

If you have several 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.

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.

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.

On top of that, you need to take action to keep your kids out of the care of strangers over the immediate term, while the authorities figure out what to do if something happens to you. We handle that in a Kids Protection Plan® too.

No more excuses

Given the potentially dire consequences for both you and your family, you can’t afford to put off creating your estate plan any longer. As your lawyer, I’ll  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 frustration, conflict, and expense.

But the biggest benefit you stand to gain from putting a plan in place is the peace of mind that comes from knowing that your loved ones will be provided and cared for no matter what happens to you. Don’t wait another day; contact us to schedule a Planning Session right away.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she ensures you make informed and empowered decisions about life and death, for yourself and the people you love. That’s Myrna offers a 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.

 

Call (813) 514-2946 today to schedule your Planning Session. Mention this article and learn how to get this $500 Planning Session at no charge.

How to Plan Your Funeral

Thinking about your funeral may not be fun, but planning ahead can be exceedingly helpful for your family. It both lets them know your wishes and assists them during a stressful time. The following are steps you can take to plan ahead:

Name who is in charge.

The first step is to designate someone to make funeral arrangements for you. State law dictates how that appointment is made. In some states, an informal note is enough. Other states require you to designate someone in a formal document, such as a health care power of attorney. If you do not designate someone, your spouse or children are usually given the task.

Put your preferences in writing.

Write out detailed funeral preferences as well as the requested disposition of your remains. Would you rather be buried or cremated? Do you want a funeral or a memorial service? Where should the funeral or memorial be held? The document can also include information about who should be invited, what you want to wear, who should speak, what music should be played, and who should be pallbearers, among other information. The writing can be a separate document or part of a health care directive. It should not be included in your will because the will may not be opened until long after the funeral.

Shop around.

It is possible to make arrangements with a funeral home ahead of time, so your family does not have to scramble to set things up while they are grieving. Prices among funeral homes can vary greatly, so it is a good idea to check with a few different ones before settling on the one you want. The Federal Trade Commission’s Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things.

Inform your family members.

Make sure you tell your family members about your wishes and let them know where you have written them down.

Figure out how to pay for it.

Funerals are expensive, so you need to think about how to pay for the one you want. You can pre-pay, but this is risky because the funds can be mismanaged or the funeral home could go out of business. Instead of paying ahead, you can set up a payable-on-death account with your bank. Make the person who will be handling your funeral arrangements the beneficiary (and make sure they know your plans). You will maintain control of your money while you are alive, but when you die it is available immediately, without having to go through probate. Another option is to purchase a life insurance policy that is specifically for funeral arrangements.

Taking the time to plan ahead will be a big help to your family and give you peace of mind.

This article is a service of attorney Myrna Serrano Setty, Personal Family Lawyer®. Myrna doesn’t just draft documents, she ensures you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why she offers a 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.

Call us at (813) 514-2946 to schedule a Planning Session. Mention this article and ask how to get this $500 session at no charge.