“Too Young For an Estate Plan” and Other Common Misconceptions

When it comes to estate planning, there is certain information that is widely circulated. It makes many believe they know a little bit about estate planning without ever having even looked into it. Unfortunately, much of this information is typically not the truth or at least not the whole truth. This is why it is crucial that if you are starting an estate plan, you talk things out with an estate planning attorney first to get the whole story.

So what are these common myths you might have heard of about estate planning?

  • You’re too young for an estate plan – You’re never too young to think about what happens after you are gone. As they say, life happens and part of that life can occasionally be unexpected death. If you have a family and people you care about, you are never too young to plan for them.
  • The state will take it all without a will – If you die without a Will, the state will ravage your estate, right? This is a very widely spread idea, but it is very much false. There will be some fees that come from your estate, but for the most part, it will be divided by intestacy laws. Essentially, it just means all valid heirs get a share. A Will makes it so you can choose who gets what and how much.
  • Wills avoid probate – Many people don’t know of probate until they have to deal with an estate. However, after you learn, it becomes a somewhat scary term. Unfortunately, while many believe probate can be avoided with a Will, this is not so. A Will provides specific instructions on how the estate is divided, but you still have to go through probate so the court can see it carried out.
  • My family won’t fight over my estate – Oh boy! You’d be wrong. It seems tawdry and unimaginable that a family as close as yours would fight over something as basic as money, but it’s going to happen. If you have multiple children, they will all have their own idea of what is fair, and fights will happen. This is why an estate plan needs to be in place to prevent these fights.

Did learning the truth on these misconceptions change your mind on how you should estate plan? Contact us today to see what we can do to help your family in the event of your passing.

Should Guardianship Be Included in Your Estate Plan?

The whole reason to create a Will and an estate plan is to dictate what happens to your estate after you pass away. However, you should also consider putting plans into place that take care of you before you pass away if you are no longer able to care for yourself or make appropriate decisions for yourself.

Guardianship is Decided by the Court

If you become incapacitated for some reason due to a long-term condition like dementia or alzheimer’s, or if you are suddently rendered incapacitated because of a car wreck or other tragedy, you will need someone to step in and make medical and financial decisions for you because you are not able to make them for yourself.  In most situations, those decisions are made by your agent under a power of attorney.  However, if you do not have a power of attorney, or if a dispute arises among your family members over the actions of the person holding the power of attorney, then the court may be required to step in and appoint a guardian.  In the event that happens, you will probably want to have the opportunity to designate who you would want to serve as your guardian.  Likewise, you may want to designate one or more persons that you do not want to serve as your guardian.  This can be accomplished by executing a Designation of Guardian in the Event of Future Need document.

Courts will often try to judge potential guardians fairly, but they do not know everything that you know about them.  By having designated a potential guardian and/or having excluded a person as a potential guardian, the Court will be guided in making a decision as to who is the most appropriate person to make decisions for you.  This is a great way to avoid fights in a guardianship case.

If you are drawing up and estate plan or fighting for guardianship of a loved one, contact us today to see what Ford + Bergner LLP can do to help you.

What Happens in Probate Court If An Estate is Broke?

After the estate of a deceased loved one goes to probate court, one of the responsibilities of the executor will be to pay off the debts of the estate before dividing the remaining assets among those listed in the Will.  However, in some circumstances, the deceased person dies owing more in debts than they have in assets to pay the debts.

Do Heirs Pay the Deceased Debts?

One of the most frequent questions we get is whether the Deceased person’s heirs are liable for the Decedent’s debts after death.  The short answer:  NO.  Beneficiaries of the estate are never on the hook for the debts of the deceased if their estate cannot cover it. However, this does not extend to spouses or other who may have signed documents agreeing to be liable for the Decedent’s debts while he or she was alive.  For instance, if a sibling of the Decedent co-signed on a car note for the Deceased, then both the Deceased’s estate and the sibling would be liable for the debt.

How Creditors Fight Back

It is natural to assume that any creditors that were owed by your loved one’s estate are not going to pleased that their debts were not satisfied. However, there is typically very little they can do about it. The only way that a creditor can fight back is to file a claim in the probate court seeking to be repaid for their debt.  If some of the creditors do not pursue their debts correctly out of the estate, then their debts may be barred and not paid from the estate.  In that instance, those creditors who properly filed their claims will receive a larger portion of the estate than they might have otherwise.

If this situation arises after the probate process, it is crucial to contact your attorney as soon as possible to prepare a case in order to fight back.

What is Probate?

It’s hard losing a loved one. Grief can reduce us, and make even simple tasks into Herculean efforts. However, when someone dies, that is when the wheels of the law start to turn. Of foremost concern to the family of the deceased is probate, which is the process of making sure a Will is genuine, and then following through on the contents of that Will.

According to The Free Legal Dictionary, the probate process is fairly straightforward. When someone dies, their case goes to a probate court.  If there was a Will, then that Will is entered into evidence, examined, and if found to be both legal and genuine then the instructions in it are typically followed. If someone dies intestate (a term that means they died without a Will to explain their desires for their property) then someone is assigned to deal with that person’s estate according to the laws of descent and distribution.

When it comes to a Will, anyone who has possession of the Will is expected to produce it and provide it to the probate court. This responsibility is typically handled by the deceased’s lawyer, but they are not the only people allowed to do this. Once it has been validated by the probate court, the Will is considered a legal document, and its instructions are followed. A unprobated Will is meaningless, in a legal sense.

Going through the probate process, especially when you’re still grieving, can be difficult. If you need assistance, or representation, all you have to do is contact us today!