You can probably find software applications and “free” tools online that claim to allow the average person to create various legal documents, from business contracts to estate plans. While estate planning may not be the most comfortable topic for some people to discuss, it’s an important consideration for anyone who plans to leave behind property and assets to their loved ones after their death.
An estate plan is a way to convey your wishes to your family after your death. This may seem simple enough, but a good estate plan requires consistent effort and attention. As your life changes, you are going to need to revisit your estate plan to ensure it still meets your expectations and provides the legal protection you want for your family.
When most people think of estate planning, they imagine a last will and testament, a legal document that a person creates to convey their final wishes and words of support to their loved ones and to assign inheritance rights over the contents of their estate. While you might be able to draft the framework of a last will and testament on your own, it is crucial to seek an attorney’s assistance to ensure your estate plan is legally viable and accomplishes your desired outcomes.
What Is Probate?
If a person dies without any estate plan, their property becomes “intestate,” and state law dictates which of the surviving family members of the deceased receives their property. This process is called probate, and it is notoriously time-consuming, tedious, and primed for conflict. The probate court must carefully identify and evaluate all contents of the deceased’s estate, resolve outstanding debt claims from the deceased’s creditors, and then distribute the remaining assets to the deceased’s beneficiaries.
All types of disputes can arise during probate administration. It can be incredibly challenging for anyone to face these difficult legal proceedings after losing a loved one unexpectedly. Keep this in mind and devote appropriate time and effort to creating an estate plan that can help your loved ones avoid probate as much as possible. Your estate plan could serve as a roadmap for resolving estate administration. While some measure of probate proceedings may be necessary for very complex estates, it is still always worth investing in proper estate planning to spare your family from probate as much as you feasibly can.
Essential Components of an Estate Plan
Some people assume that estate planning is only a concern for the wealthy, but this isn’t true at all. Even if you only control modest assets, a properly configured estate plan can still save your loved ones a substantial amount of time and money they would otherwise spend in probate. Most states enforce laws of intestate succession that dictate who receives the property left behind by a deceased individual. Typically, intestate succession rights begin with the deceased’s surviving spouse and children, followed by extended family, other dependents, and anyone who can provide a valid legal claim on the contents of their estate.
For your estate plan to be as effective as it can be, it must contain at least four core components. A last will and testament conveys your beneficiary designations and final thoughts to your loved ones. A trust or living trust can potentially help your family avoid tedious probate proceedings, depending on the type you create. A durable power of attorney designates a personal representative as having the authority of your signature. This ensures someone can make legally binding decisions on your behalf in the event you become incapacitated. Finally, an advanced medical care directive informs your family of your preferences regarding emergency medical care, life support, and palliative end-of-life care.
An estate planning attorney is a valuable asset when it comes to ensuring your estate plan contains these four components. You are likely able to customize your estate plan more than you may initially expect with an attorney’s help. Additionally, they can also help you in the future should you need to revise your estate plan for any reason. For example, if you recently divorced, you likely need to revisit your estate plan and ensure it reflects your new circumstances.
Q: Do I Really Need to Hire an Estate Planning Attorney?
A: While it is technically possible to craft an estate plan without an attorney, you are highly unlikely to create a comprehensive and legally enforceable plan without an attorney’s assistance. Even after accounting for the cost of hiring your lawyer, they can easily provide tremendous value with the peace of mind and financial security they can provide.
Q: How Much Does It Cost to Hire an Estate Planning Attorney?
A: Attorneys who specialize in specific areas of law can bill their clients in many possible ways. Some attorneys bill by the hour, dividing their time into ten or 15-minute increments and billing their clients with an hourly rate. Some estate planning attorneys may offer flat rates for services like will writing or amending an existing estate plan. Always verify an attorney’s billing policy before agreeing to their representation.
Q: Can I Change My Estate Plan in the Future?
A: It is usually possible to change any element of an estate plan to reflect a recent event in your life. However, some estate planning elements cannot be changed once created. Specifically, if you create an irrevocable living trust, you cannot change any aspect of it after you create it. This may sound disadvantageous, but this type of trust can be incredibly valuable to certain individuals, and your attorney can help you determine whether such a trust would be right for you.
Q: What Happens If Someone Contests My Estate Plan?
A: No matter how much detail you put into your estate plan and how much effort you devote to limiting uncertainty for your loved ones, there is always a chance for disputes to arise during estate administration. Beneficiary designations, contested wills, and arguments over fiduciary duties, guardianship rights, and other issues can potentially arise in any estate administration case. These disputes are resolved in probate court.
Estate planning may seem difficult, but it is much easier to approach this subject with legal counsel you can trust advising you. Contact an estate planning attorney as soon as possible to start building your estate plan with confidence.