There is nothing like a natural disaster to put the shortness of our lives into perspective. As we pick up the pieces and return to normal lives, it’s important to take a very serious look at our lives and realize that we need a plan in place to ensure that the things we have worked for remain intact for ourselves and our families. Entire families were lost in the floods, children lost their parents, parents lost their children, and undoubtedly some will come out of the disaster forever altered mentally or physically, and lacking capability to care for themselves any longer. Without an estate plan, the course of the lives affected by Hurricane Harvey will be decided by strangers in court.
Many times over, in our practice, we have come to realize that a vast majority of the public does not recognize the term “estate planning” as it’s connected to writing a will or a trust, drafting a medical directive, and putting a power of attorney in place. Alternatively, people with limited means, or who may be living paycheck to paycheck seem to feel that an intestate estate will be fine, since they have little property to dispose of. The truth is, drafting an estate plan accomplishes a lot more than simply disposing of property, including:
- Controlling who takes care of you, and your assets in the event of your disability, other than some random court assignment, or perhaps someone you disliked or mistrusted;
- Deciding for yourself who should care for your minor children, rather than the person the courts decide. Only you know who will raise your kids according to your wishes;
- Limiting or preventing disputes among family members, because despair and loss does not always bring the best out in people;
- Reducing the legal expenses incurred by your family, because a will states your clear intention, and can reduce attorney’s fees by limiting disputes;
- Allowing you to skip probate, a very public endeavor, by creating a trust instead of a will.
A will is a written document that is signed and witnessed. A will is considered a "death" document as it only goes into effect when you die.
- provides for the distribution of assets owned by you, but not assets directed to others through beneficiary designations (e.g. life insurance or retirement benefits)
- sends assets in your individual name or payable to your estate through the probate process
- allows you to appoint permanent guardians for your minor children
- names the person you wish to settle your estate (e.g. executor or personal representative)
- doesn’t always include protective trusts for beneficiaries and tax planning because many wills are simple 2-3 page documents
- permits you to revoke or amend your instructions during your lifetime
- tends to cost less than a trust on the outset but costs more to settle during court proceedings after death
Probate Guaranteed. If you use a will as your primary estate planning tool, you own property in your individual name, or property is made payable to your estate, probate is guaranteed.
A trust is a legal document, signed and witnessed, and effective during your lifetime, during any period of disability, and after death. Because the trust is effective during your lifetime and you can change it, it’s referred to as a "living" document.
- has lifetime benefits
- provides for the distribution of your assets
- avoids probate if fully funded
- provides for a successor trustee upon your death or incapacity
- allows for the management of your property – even if you’re incapacitated
- can address appointing disability guardians for minor children
- often includes protective trusts for beneficiaries and tax planning
- permits you to revoke or amend your wishes during your lifetime
- costs more than a simple will on the outset but much less upon administration, while typically providing significantly more value
Probate Avoided. If you use a trust as your estate planning tool, probate is avoided - saving your family time and money.
HOW TO DECIDE: As everyone’s situation is different, it’s important to analyze every aspect of your situation – and what the future may hold – so that you can determine what’s right for you and whether probate avoidance, incapacity planning, and trust protections have value to you and those you love. Most people receive the greatest overall benefit from having a trust.
ACT NOW: Without an estate plan in place, you and your family are left completely unprotected. Call our office now and we’ll help you determine whether a will or a trust makes sense for your situation. You don’t have to make these decisions alone.CALL (713) 893-6435
Medical and Financial Matters
Without a comprehensive incapacity plan in place, your family will have to go to court to get a judge to appoint a guardian or conservator to take control of your assets and health care decisions. This guardian or conservator will make all personal and medical decisions on your behalf as part of a court-supervised guardianship or conservatorship. Until you regain capacity or die, you and your loved ones will be faced with an expensive and time-consuming guardianship or conservatorship proceeding. There are two dimensions to decision making that need to be considered: financial decisions and healthcare decisions.
Finances during incapacity
If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself. Of course, bills still need to be paid, tax returns still need to be filed, and investments still need to be managed.
Healthcare during incapacity
If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself. Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive.
You must have these five essential legal documents in place before becoming incapacitated so that your family is empowered to make decisions for you:
- Financial power of attorney
- Revocable living trust
- Medical power of attorney
- Living will
- HIPAA authorization
Is your incapacity plan up to date?
Once you get all of these legal documents for your incapacity plan in place, you cannot simply stick them in a drawer and forget about them. Instead, your incapacity plan must be reviewed and updated periodically and when certain life events occur such as moving to a new state or going through a divorce. If you keep your incapacity plan up to date and make the documents available to your loved ones and trusted helpers, it should work the way you expect it to if needed.CALL (713) 893-6435
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