Frequently Asked Questions
It depends on your goals and your family situation. In an initial meeting I will always start by asking you what you want to accomplish and what your concerns are. Sometimes, the desired result can only be accomplished with a Trust. Other times, we can use either a Will or a Trust and in those cases, I will outline the pros and cons of each option and the cost of each and let you decide which alternative is best suited for you and your family. Although the size of a person’s estate is one factor in this decision, it is not the only factor and often isn’t the primary factor. Taking care of your loved ones in the way that meets their unique needs, is the most important factor in this decision. I can help you sort through these decisions.
A Trust is designed to offer certain benefits and protections for your beneficiaries, but it can only provide those benefits with respect to those assets that the Trustee has control over. If your assets aren’t in your Trust, the trust provisions can be meaningless. Although we try very hard to make sure that all of your assets are in your trust, I realize that sometimes clients may fail to tell me about some assets or may move their investments and inadvertently let them fall out of the Trust. So I always recommend, in addition to your Trust, that you have a Pour-Over Will which essentially says “If I own anything in my own name at the time of my death, I leave it to my Trustee to be administered as part of the Trust.” We hope we never have to use that Will, but it’s there in case you need it.
To many people, the primary advantage of a Trust is avoiding probate. Probate typically takes a year to complete, is a very public proceeding, requires multiple Court hearings and is usually very costly. Avoiding Probate may be enough reason to have a Trust. But there are other advantages of a Trust: With a Trust you can provide management to beneficiaries that may not be ready to manage an inheritance themselves; you can offer creditor protection to your beneficiaries; you can provide remarriage protection for your beneficiaries in case your spouse remarries after your death; you can provide divorce protection for your beneficiaries. A Trust can usually be settled more quickly than a probate estate, at less expense and a Trust is more difficult to contest than a Will. I can help you decide if a trust is the best choice for you.
A Durable Power of attorney authorizes someone else to do your business for you if you are disabled or are otherwise unable to take care of your own business. When I mention this, most people immediately think about paying their bills and comment that their spouse or significant other or a child is a joint owner or authorized signor on their bank accounts. But doing your business is so much more than just paying your bills. If you had an extended illness or injury that was disabling it might be necessary to sell or mortgage your home, withdraw money from your IRA, initiate or settle litigation, deal with your health insurance company or government agencies – none of which your spouse could do without a Durable Power of Attorney. If you don’t have a DPOA, your family may have to go to Court to have you declared incompetent and to have a Conservator appointed to do your business. This is a lengthy, expensive and nasty proceeding and it gives the Court the authority to make decisions about your financial affairs. I believe that everyone should have a Durable Power of Attorney.
You can find forms on the internet for about anything but knowing whether they are right for you, whether they work in your state and how to effectively use them requires advice from a knowledgeable professional. In my personal experience, the only Wills or Trusts that I have seen successfully contested are ones that people did themselves. When preparing your own legal document, you are held to the same standards as an attorney and if you don’t know the law, it may not work. I have seen internet documents that purport to be valid in all 50 states, but they were not the best or latest forms and they are often not properly completed or executed as required by law. These shortcomings usually result in expensive Court proceedings for your family and often result in something that you didn’t really intend. It’s best to spend a little money to make sure that it is done right.
Probate is the process that all States have established to ensure that your creditors are paid and your assets distributed among your heirs or beneficiaries. It has sometimes been described as a lawsuit that you file against yourself for the benefit of your creditors. Each state has different time periods within which creditors may file claims and within which Wills may be filed. These time periods often mean that your bills can’t be paid immediately and that your heirs or beneficiaries can’t receive your assets until the probate process is complete. In Kansas and Missouri, most probate cases take about a year to complete, but I have seen probate cases remain open for many years.
While most people want to avoid probate, sometimes it is the most efficient way to settle an estate. For small estates and estates that may be insolvent, probate provides a process to cut off the claims of creditors. Consultation with a knowledgeable estate planning attorney can help you decide what is best for you and your family.
People are often under the mistaken impression that having a Will avoids probate, but it does not. A Will must be filed for probate and if you withhold a Will from probate you may forfeit anything that you would be entitled to. Having a Will can simplify the probate process, but the Will must go through Probate.
The prospect of having to be in a nursing home is often the biggest threat to a person’s estate. Even an average stay in a nursing home can be financially devastating. This is a complex area of the law and you need the assistance of an estate planning or elder law attorney. There are things that you can do, but it is most effective if you start years before you suspect that you might need nursing care. One of the most effective things you can do is purchase Long Term Care insurance – but not everyone qualifies and can afford it. Even if you don’t qualify or can’t afford it, there are many things that can be done. Some of them are simple and some of them are complex. Each state’s law is different and each person’s situation is different, so you must consult a local attorney who is knowledgeable in this area of law.
What we often think of as the “traditional family” – a heterosexual couple, married only once, with children is now the exception rather than the rule. Blended families where at least one of the people has children from a previous relationship are more common than in the past. These families require and deserve great care to avoid unintended consequences. Without proper planning, the heirs of the last spouse to die get everything to the exclusion of the heirs of the one that dies first.
Unmarried couples, whether straight or gay, do not have any of the protections that the law provides for “traditional families” so they must create their own set of documents to protect their partners and their children. Many of the rights that a traditional family has by law can be created for unmarried couples, but you have to be proactive and failure to have a current estate plan will almost certainly mean that your partner will have no rights whatsoever.