At the risk of being too repetitive, I always feel the beginning of the new year is the perfect time to focus on those important tasks that just kept slipping down on the previous year’s to-do list. I know, life gets in the way. You’ve been busy, Etc. Etc. I found this article to be both a good reminder and quite frank about the consequences of NOT having an estate plan. Read on … and then, I hope, you’ll schedule a time to meet with me to kick off your estate plan.
Lindsay Yerkovich, writing for the SweetWater Now, Sweetwater County, WY, online publication on 1/6/22 has this to say:
If you’ve been thinking about creating an estate plan, but still haven’t checked it off your to-do list, now is the perfect time to get it done.
When it comes to putting off or refusing to create an estate plan, your mind can concoct all sorts of rationalizations: “I won’t care because I’ll be dead,” “I’m too young,” “That won’t happen to me,” or “My family will know what to do.” But these thoughts all come from a mix of pride, denial, and above all, a lack of real education about estate planning and the consequences to your family of not planning.
Once you understand exactly how planning is designed to work and what it protects against, you’ll realize there is no acceptable excuse for not having a plan.
Indeed, the first step in creating a proper plan is to thoroughly understand the potential consequences of going without one. In the event of your death or incapacity, not having a plan could be incredibly traumatic and costly for both you and your family, who will be forced 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 a plan:
1. Your family will have to go to court.
If you don’t have a plan, or if you 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 all the more arduous for those you leave behind, especially if the wrong people take an interest in your family’s affairs.
That said, the expense and drama of the court system can be almost totally avoided with proper planning. Using a trust, for example, your assets will pass directly to your family upon your death, without the need for any court intervention. As long as you have planned properly, just about everything can happen in the privacy of our office and on your family’s time.
2. 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 a 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.
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 give everything to your spouse and leave your children out. 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 over 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 little financial wealth involved.
You can 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.
3. 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—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 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.
An estate planning attorney can help you put planning vehicles 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. The attorney 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.
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. That said, 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. Take action and check this urgent task off your to-do list.
Remember: “An ounce of prevention is worth a pound of cure.” When making your estate plans or when probating an estate or administering a trust, do not go it alone. Be sure to engage a Cincinnati estate planning attorney.
For more information about estate planning, probate, or trust administration in Cincinnati (and throughout the rest of Southwest Ohio) and to review free resources regarding estate planning, probate, or trust administration, visit my website https://davidlefton.com/ If you have questions regarding this article or a particular legal matter, feel free to contact me at 513-399-PLAN (7526). David H. Lefton is an Estate Planning and Probate Attorney. He is a partner in the law firm of Barron, Peck, Bennie & Schlemmer.
Lindsay Yerkovich, writing for the SweetWater Now, Sweetwater County, WY, online publication on 1/6/22