Get It In Writing:
Why it is important to have an Estate Plan, even if you think you don’t have an estate.
By J. Max Barger, Esq.

In these financially turbulent times, as you watch the value of your home and nest egg with trepidation and hope, preparing a Last Will and Testament may not be at the forefront of your mind. Many people mistakenly believe that their personal and financial situations do not warrant formal estate planning. You may see your affairs as uncomplicated, predictable and unworthy of top-flight professional advice regarding passing assets to your beneficiaries when you die. However, it is not unusual for people to have situations that, left unattended, will yield unintended or even disastrous results when no valid plan is in place.

Regardless of affluence, or the lack of it, everyone needs to consider getting an estate plan in place and their affairs in order. Here are three of the many reasons why you should have a valid Will or Trust in place to direct the disposition of your personal affairs.

1. Closure for Your Family

I recently met with a woman whose mother had unexpectedly died. Her mother had no Will, no plans, no instructions, nothing to convey her thoughts and wishes to her surviving family. The daughter sat across from me and wept, “I don’t know what to do. I don’t know what she wanted.”

Having an estate plan in place is as much about providing closure and peace of mind to your surviving loved ones as it is about ordering your own affairs. A simple direction distributing your personal effects, a statement on how your remaining assets are to be handled and a simple inventory of those assets goes a long way in helping your surviving loved ones grieve and heal. It also makes the process much easier since no one else may be familiar with the intimate details of your financial affairs.

2. Care for Your Minor Children and Grandchildren

A big decision facing anyone with minor children is “who will take care of the kids if I am gone?” Equally as important is considering who will step in and care for your children if you become disabled.

You may have specific ideas about how your children should be raised, where they should be educated, where they should worship and when and how money should be spent for their benefit. Even more common are family squabbles over which family members will care for the surviving minor children. Choosing the right people who you trust to carry out your desires is vitally important, regardless of your level of wealth.

In order to promote harmony and peace among the surviving family members, and to make sure that your intent and values are taught to your children, it is a good idea to have a Will in which you nominate guardians for your children, and appoint “stand-by” guardians in a power of attorney in the event you become disabled.

3. Consequences for Blended Families, Non-Traditional Families and Your Intent

When it comes to distributing your assets and caring for you when you are sick, the law presupposes a fairly narrow set of familial circumstances: you are married (and will remain so, to the same person) to someone of the opposite sex; you have children together who love you, are responsible and will marry the ideal mate, again, of the opposite sex; these children will remain happily married, and produce beautiful, intelligent and numerous descendants for you.

Anyone whose circumstances do not fit this “ideal” has planning challenges (or “opportunities”) to address. Without a written plan, the assets of a blended family may go to someone other than the intended persons, often leading to the accidental disinheritance of children. A couple who is not legally married may experience severe loss of assets and rights (such as making funeral arrangement and the ability to continue to living in the home) due to a lack of planning. Assets or the affairs of a single individual without a plan may end up in the wrong hands. Children who are not able to handle assets may squander an inheritance without proper controls.

Numerous examples of these situations abound and some have made their way up through our courts. Discerning what is best for your loved ones, agreeing with your spouse or partner, and overcoming those potential legal hurdles can be accomplished through estate planning.

“Estate planning” is simply: (a) the management and control of your property while you are living; (b) planning for you and your loved ones if you become disabled; and (c) giving what you have to whom you want, when you want, and the way you want. Putting it in writing and signing your name to it has a positive impact that will survive you.

© J. Max Barger, Esq. 2008