FAQs Estate Planning
What happens if I do not have a Will?
A Will is a legal document that details out how you’d like your tangible assets to be passed on or distributed upon your death. If you do not have a Will, your assets will be passed according to the state’s intestacy laws, for the state in which you reside at the time of your death. Intestacy laws are different state to state, but in general, assets will go to living, blood, relatives; spouses and children, first.
Also, if you don't have a Will, and you have a minor child/children, there are not clear cut rules regarding who will be the new guardian of your child/children (see my blog posts on "new parents" and the new parent question below).
What is the difference between a Will and a Trust? How do I know which one I need?
Both are legal tools to accomplish the distribution of your tangible assets once you are no longer living.
A Will is a more simplistic tool, but there are limitations around how specific your wishes can be. For many, a Will may be enough.
A Trust is a legal tool used to execute specific wishes.
That said, one of the goals of a Trust is to avoid Probate. Depending on your situation, a Trust is often a more cost-effective option rather than going through Probate. A Trust also allows for funds and assets to be immediately available, which can be important if there are elderly or a family involved.
The decision between weather a Trust of a Will is the best choice should be decided on with guidance from a lawyer.
I'm not elderly or sick, so I don't need to do estate planning, right?
Actually, the best time to plan your estate is BEFORE you are elderly or facing health issues. Working through your estate with David early, will help you plan for the future, avoid numerous pitfalls, and put you at ease. Getting this important documentation done as soon as possible and reviewing/updating as significant life changes occur will set you up for long term success.
I am a new parent. Everything I read says I need to do a Will, why?
A Will, or Trust, is an extremely important legal document to get done as a new parent. Less important is passing your assets to your new child, more important is assigning your new child a guardian. Being the child’s parent automatically makes you their legal guardian in the eyes of the law until they reach the age of 18. If you (both guardians if both are alive) are to pass away before they turn 18, no laws automatically dictates who become their new guardian.
If you are to pass away, and no guardian is assigned by you, your relatives would need to go through a lengthy, emotional, and expensive process to petition the courts for guardianship. In the case where two family members want to be the guardian, say paternal and maternal grandparents, the process can get very ugly. This also leaves the decision up to the court, which may rule that it’s better to keep the children with family. You may not want them to go to family, and rather would like them stay in their local school environment with a trusted friend.
All of the issues above can be avoided with a Will indicating an assigned Guardian.
Can I include my pets in my Estate plan? What if I want to leave money for their care?
The answer is yes. In fact, I always advise my clients to take care of all that is important to them, whether that be a 2-legged person, 4-legged creature, or organization they are connected to.
There are many different ways to go about taking care of your pet. We can come up with the best plan to include them, depending on how specific your wishes are.
What should I expect at my first consultation?
While your first meeting is somewhat of a “meet and greet”, we will start to get into important discussions around long term plans, your current and future financial situation, and your loved ones. We will spend some time talking about what powers of attorneys are and their importance.
You will not need to make any decisions during our first meeting. I generally send clients home with “homework” to do. Once you have time to digest the questions, we can regroup and determine the best course of action to move forward.
What should I think about before my first consultation? Is there anything I should bring?
Prior to your first consultation, you’ll want to think about individuals you trust regarding financial and health care decisions. Sometimes the people you trust to carry out your wishes aren’t always family.
You should also start to get a general idea of what you’d like to do with your assets once you are no longer here. Would you like your assets to be sold, donated, divided? Do you want only family members to receive some of your Estate, or are their good friends you’d like to include? Are there charities your interested in giving to? Are there specific items you’d like to go to individuals? If you come in with your general idea, we can talk about how we can make it happen.
To your first appointment, you can bring any previous Wills or Trusts, and any Powers of Attorneys you may have. It may also be helpful to bring information on your bank accounts or investments as well as a recent mortgage statement if you own a home.
How long does it take to do an Estate Plan?
Estate planning is a very individualized processes. If a client has all of their decisions and information lined up, we can execute a Will and Powers of Attorneys in as little as 3 weeks.
For more complicated trusts or situations, it may take longer to gather information and come up with appropriate plans (an back-up plans). A typical Trust will take about 2 months from our initial meeting to execution. For more complicated Trusts, we may work together for 4-6 months to get everything just right.
What is a Power of Attorney? Is it important and do I need one?
Powers of Attorney’s are as important as a Will or Trust, in my opinion. These documents can serve a very different function that Wills and Trusts.
A Financial Power of Attorney assigns an individual (and back-ups) to be able to manage your money, in your best interest, if you are no longer able to manage your money for yourself.
A Health Care Power of Attorney assigns an individual (and back-ups) to be able to manage your health care decisions, in your best interest, if you are no longer able to make decisions for yourself. We are able to layout important instructions via a Living Will, for your Health Care Power of Attorney to follow.
What is a Living Will?
A Living Will is a legal document that lays out your decisions regarding your health care decisions. It is used if you can no longer communicate your wishes, and allows your Health Care Power of Attorney to understand what you’d want for yourself, if you could communicate.
Information here can be as specific as you’d like. I have had clients indicate that they wish for no blood transfusions, under any circumstance. Others indicate that they’d like any medical procedure available to try and keep them alive. There are not right decisions when if come to this document, it is your personal beliefs and preferences.
I really want to be cremated, but my family is against it. Is there a way to make sure I am cremated?
This is a very common question that I get. Yes, through a document called, a final disposition, we can detail out your final wishes. We can indicate if you’d like to be cremated and where you’d like your ashes spread. Or, we can detail out and pre-arrangements made or paid for. We can even detail out if you’d like a burial service and what music you’d like played.
While some people find this topic difficult to discuss, making your wishes known and documenting those, actually makes the entire process much easier and bearable for family left after you pass away.
I want my partner to be able to live in my home until he/she passes away, but I don't want them to inherit the home, can we do that?
The short answer is yes, we can do that. With that said, there are some very specific items we will need to work through, if this is something you wish to do. There are some inherent risks with this approach that I'd like to discuss with you when we meet.