By Abigail Neal, Phoenix Estate Planning Attorney
Is it absolutely terrible if you don’t have an estate plan? Maybe, maybe not. The problem is that you won’t really know if you needed an estate plan or not until you need an estate plan. In a way, you can think about it like insurance – you don’t need it until you need it. But you know that if the roof caves in on your house and you don’t have homeowners insurance you’ve got big, expensive problems. Estate planning works same way with one fundamental difference: it’s not you who will have to deal with the big, expensive problems – it will be the people you care about most.
While it’s pretty easy to understand that car insurance covers damage to the car and homeowners insurance covers damage to the home, but what does estate planning cover? At its most basic, damage to YOU. It kicks in if there is an accident or illness that leaves you incapacitated or if you die. Imagine for a minute what would happen if you just vanished. Who would watch the kids? Who would pay the bills? What about your pets, your business, your life? What would happen to everything?
What about if instead of vanishing, you were in the hospital and unable to communicate. Same questions about the kids, bills, business and pets, but now there’s a whole new set of questions about what will happen to you? Will you get the kind of care and treatment that you want? Will someone you know and trust be making those decisions? Will your loved ones agree on your care and treatment, or will they argue unnecessarily?
Answering these questions is what estate planning is all about. As you can tell, if you don’t have an estate plan when you need it, you’ve probably got big, expensive and difficult problems. Or your loved ones have big, expensive and difficult problems. So you don’t have an estate plan, how does all of this get handled? Simple: everyone goes to probate court. If everyone agrees on everything and there is a minimum of fuss, maybe things can be resolved for a few thousand dollars. If not, it doesn’t take much before things get very, very expensive.
But how does this happen? Doesn’t it seem like these should all be questions handled privately by your loved ones? Ideally, of course that’s how it should work. But the law requires court orders to make certain things happen. And healthcare privacy laws put up a major hurdle. And people disagree. These are big, difficult, potentially life altering decisions. Sometimes people disagree about what they think is appropriate regarding a loved one’s care or treatment. Sometimes a loved one has something that someone else wants and is willing to throw everyone under the bus to get what they want. You hope that these aren’t your loved ones, and maybe they won’t be, but what if they are? Again, these are big, life altering decisions. Looking at both the best case scenarios and worst case scenarios and the cost, here is what happens if you don’t have an estate plan.
1. WHAT HAPPENS TO THE KIDS.
According to Arizona law, anyone under the age of 18 is a minor. A minor can’t hold assets in his or her own name and can’t legally take care of him or herself. Under the law, the person who would care for a minor if the minor’s parents were unable to care for them is called a guardian. A guardian is responsible for raising and caring for your minor child. A guardian usually has the same powers and responsibilities of a parent with regards to the minor child’s education, support and care. A guardian may also make healthcare decisions for the child. As a minor’s parent, you have the right to name a guardian to take care of your child if something were to happen to you. However, the only way you can do this is by making a last will and testament and naming a guardian in that document. If you don’t have a will naming a guardian, the probate court will pick one for you. It could be a relative, friend, spouse, lawyer or anyone else the court thinks is appropriate. It could also be an organization or state run agency. It may or may not be someone you are comfortable with raising your children. Sure, you could write up a document, call it a will and name a guardian for your minor child in it. But you could be opening yourself and your child up to potentially messy litigation to determine whether or not your “will” is valid under the law.
- Best Case Scenario: the court appoints someone you know and trust to raise your children. They provide the care and support you would have wanted for your children.
- Worst Case Scenario #1: the court appoints someone you don’t know and don’t trust to raise your children. I cannot imagine anything more horrendous.
- Worse Case Scenario #2: your loved ones fight over your children. Fighting over children is never good, especially for the children.
- The Cost: a court order is required to appoint a guardian for a minor, regardless of whether the parent had a will or not. Between attorneys’ fees and costs (filing fees, etc.) it can cost about $3,000 and up. The costs are largely dependent on whether everyone agrees to the appointment of a particular guardian. Having a will can certainly help minimize some of these costs since you, the parent, decided who should be the guardian instead of leaving to the courts and your loved ones to sort it out.
- What Happens if You Have an Estate Plan: with an estate plan, you would name a guardian for your children in your will. That way you, and not the courts, pick the best possible person to raise your children.
Another question is what happens to the assets that are left to the kids? Since minors can’t hold assets in their own name, someone must hold the assets for them. This can be done in two ways.
- A conservator can be appointed to manage the minor’s assets until the minor reaches the age of majority (18). This would be either someone you designated in your will, or someone that the court picks. It could be the same person as your child’s guardian, but it doesn’t have to be.
- You create a trust that owns all of your assets and make your children beneficiaries of that trust. Those assets can remain in trust, controlled by the successor trustee you choose, and distributed to your children when they reach the age of majority, or whenever the terms of your trust dictate (reach a certain age, go to college, graduate college, etc.).
Without an estate plan, you can’t control the distribution of your assets to your children and you can’t decide who manages those assets for them until they turn 18.
- Best Case Scenario: the court picks someone you know and trust to manage your children’s assets. Your children each get their entire share when they turn 18, free to spend it as they please.
- Worst Case Scenario: the court picks someone you don’t know and don’t trust to manage your children’s assets. There might not be anything left when they turn 18.
- The Cost: this can be handled during the guardianship proceedings discussed above. It’s a matter of you picking someone or the court picking someone.
- What Happens if You Have an Estate Plan: With an estate plan, you either name a conservator for your children’s assets in your will, or create a trust and name a successor trustee to manage the assets you leave in trust. With a trust, you can avoid the probate court all together with respect to who will manage your children’s assets. (You always have to go to court to modify the legal guardianship of a minor.)
2. WHO PAYS THE BILLS & MANAGES THE BUSINESS.
Whether it’s writing a check for your mortgage, paying your electrical bill or buying groceries for your family, managing your finances is something you probably do on daily basis. Maybe you even own your own business and deal with all of the day to day operations yourself. But what if you’re not able to manage your finances or business yourself? What will happen to the mortgage, the electrical bill or the groceries that feed your family? Just because you can’t do it yourself doesn’t mean those bills and expenses don’t have to be paid. Your bills will likely still have to be paid out of your personal funds, but the question is who will access your personal funds to pay them? If you create a financial power of attorney or a trust, you pick who should access your finances and pay the bills. Otherwise, your loved ones will have to go to court to get a court order appointing someone as your conservator who will be able to handle your finances. The probate court will pick who that someone is.
- Best Case Scenario: the court appoints someone you know and trust to handle your finances and business. They handle your finances and business just as you would have wanted them to. As with any court case, a conservatorship case is a public proceeding. This means that your assets, income and expenses become a matter of public record.
- Worst Case Scenario: the courts appoints someone you don’t know and don’t trust to handle your finances and business. Hope that they don’t spend your life savings. Another bad scenario: your loved ones fight over who gets to control your finances. Fighting could mean full blown litigation with motions, depositions, discovery and legal fees galore. Some of the legal fees for those fights will likely come out of your checkbook.
- The Cost: the cost to get a court order to appoint a conservator is typically between $3,000 – $5,000 when you hire an attorney – unless things get ugly.
- What Happens if You Have an Estate Plan: if you create an estate plan, you will probably create a financial power of attorney (sometimes called a durable power of attorney) and/or establish a revocable living trust. With financial power of attorney or property funded revocable living trust, you pick someone to be able to handle your finances if something were to happen to you. The person that you name as either your agent under your power of attorney or your successor trustee will be able to step in and handle your finances and business right away. There is no need for anyone to go to court or spend money getting a court order. And if you don’t have to go to court, your all of your financial information will not become public record.
3. WHO WILL MAKE YOUR HEALTHCARE DECISIONS & WHAT THOSE DECISIONS MAY BE.
If you were in an accident or got sick and ended up in the hospital, who would make healthcare decisions for you? Would they make the same decisions you would have made if you were able to make those decisions yourself? When it comes to healthcare decisions, two separate issues must be addressed. First, if you are in need of medical treatment but unable to choose a treatment plan yourself, who would choose the treatment plan for you? Second, if you were in an irreversible and persistent vegetative state from which you won’t recover, do you want to be kept alive artificially or do you be able to pass naturally? What if your loved ones have differing opinions about what they think should happen?
You probably saw these exact issues play out in the national media a few years ago. Terri Schaivo was a normal 26 year old woman who suddenly went into cardiac arrest and collapsed at her home. The doctors said that Terri was in a persistent vegetative state and would not recover. Terri’s husband was appointed as her guardian and consequently was able to make decisions about Terri’s medical care. His decision to let Terri go by removing her feeding tube sparked a massive court fight with Terri’s parents. Terri’s parents wanted to keep her alive in a vegetative state, where Terri’s husband wanted to remove the feeding tube and let Terri pass away. For years Terri’s husband and parents fought in court over what they thought Terri would have wanted. Unfortunately, no one will ever know since Terri did not have an estate plan. Instead, it was left up to a judge to decide.
- Best Case Scenario: the court picks someone you know and trust to make your healthcare decisions. They do what you would have wanted done yourself. The court proceeding to have someone appointed as your guardian is public record. Part of this public record will include a description of the reasons why you need to have a guardian appointed.
- Worst Case Scenario: the court picks someone you don’t know and don’t trust to make your healthcare decisions. Those decisions could mean choosing a course of treatment for you or taking you off life support.
- The Cost: with no living will or healthcare power of attorney, your loved ones will have to go to court and have the court appoint someone to serve as your healthcare agent. The cost, including attorneys’ fees, is typically between $3,000 – $5,000. However, things can escalate quickly if your loved ones do not agree on who should be appointed as your healthcare agent.
- What Happens if You Have an Estate Plan: If Terri Schaivo had created a healthcare power of attorney and living will hers wouldn’t be a household name in every home in America. If she had, she, Terri, would have picked the best person to make her medical decisions in her healthcare power of attorney. She would have also indicated her preferences on being kept alive in a vegetative state in her living will. This could have saved her family enormous heartache and unimaginable legal bills. There would have been no need to go to court to determine what was best for Terri if Terri had already decided what was best for Terri. Terri’s life and illness would not have become a public record.
4. WHAT HAPPENS TO THE REST OF YOUR STUFF.
Like most people, you probably have some stuff. Normal, everyday stuff. Maybe you have some expensive stuff like jewelry, antiques, art or collectibles. You might own a car and a home. You might own a business, have a retirement fund and a bank account or two. Any pets? Under the law, pets are considered personal property and get distributed like anything else.
So where does your stuff go if you don’t have an estate plan? It can be a complicated determination, depending on if you were married, had kids, if your spouse was the mother/father of those kids. In the most basic of scenarios, if Homer and Marge are married and the living children they have together are their only children, Homer and Marge’s children would inherit their property in equal shares. If Homer weren’t married, and didn’t have any kids, his property would pass first to his parents, then siblings, then grandparents, then aunts and uncles and down the line until the heirs are found. But, these are just general rules and each situation is different. I urge you to read my article Who Gets My Property If I Die Without A Will to learn more.
- Best Case Scenario: the court distributes your property to those persons you would have wanted to inherit your property. This distribution happens during probate. During probate, your entire financial picture including assets, liabilities and your distribution plan becomes a matter of public record.
- Worst Case Scenario #1: the court distributes your property to one or more persons you would not have wanted to inherit your property.
- Worse Case Scenario #2: the court distributes your property in a way you would not have wanted. In a community property state, this could mean disaster for your spouse if you have children with someone other than your spouse. In community property states, most married couples own the bulk, if not all, of their assets as community property. Community property is almost all property that is acquired during the marriage. In this scenario, your entire interest in the community property will be passed to your children. Unless you owned any separate property, nothing would go to your spouse.
- Worst Case Scenario #3: your potential heirs fight over your stuff. This could mean full blown litigation, with motions, depositions, discovery and even trial.
- The Cost: a probate where there is a will that is not contested or everyone agrees on everything typically costs around $2,500 (may cost less depending on the circumstances). This is called an informal probate. Without a will, your heirs may be able to go the informal probate route, but it is absolutely critical that all of the heirs get along and agree on everything. Fee will go up quickly if the heirs don’t get along.
- What Happens if You Have an Estate Plan: you pick who gets your stuff. You can divide it up however you want to. Give certain items to certain people. Give money to charity. It’s your stuff, so it’s up to you. If you have a will, you name your heirs in your will. If you have a trust, you name the beneficiaries of your trust. The difference between having a will and having a trust is that a will must still be presented to the probate court for administration, which then becomes a matter of public record. If nobody contests the will, your property can be distributed by going through a mostly administrative procedure (the $2,500 – $3,000 process discussed above). If you have a trust, there is no need to go to court to have your property distributed. A trust is its own legal entity. When properly funded, your trust owns all your assets. You still own and control them while you’re alive and able, but when you’re not, a court order isn’t needed to transfer any of your property. You already did that when you transferred all your property into the trust. Now the trust owns everything and the property must be distributed pursuant to the terms of the trust. No need for a probate, no need for a court at all. This also helps retain your privacy, since your estate plan will not become part of the public record in a probate proceeding.
SO DO I HAVE TO HAVE AN ESTATE PLAN?
Absolutely not. If you don’t create one, the state and court will create one for you. You just won’t be able to object if things don’t go the way you would have wanted. And the people who will likely suffer the most will be your loved ones.
THE COST OF AN ESTATE PLAN VS. NOT HAVING AN ESTATE PLAN
Although cost is definitely important, even more important is that with an estate plan, YOU can decide what will happen to you, your stuff, and your loved ones. Why would you want the most important people in your life to have to sweat it out in front of a judge when YOU could have decided how the story would go?
Creating an estate plan is YOU, taking control of YOUR life, and writing YOUR story just how YOU want it to go.
WHY YOU SHOULD HIRE POWERS & NEAL TO PREPARE YOUR ESTATE PLAN
By now, you probably know you need an estate plan. But how to get it done? When considering different options for preparing an estate plan, the two main things most people look for are cost and competence. If these things are important to you, you’re in the right place. I am an Arizona licensed attorney committed to providing estate plans designed to protect you and your family.
We believe that doing what’s “right” for yourself and your family shouldn’t be “wrong” for your wallet. For most people, either a basic or trust based plan is a great start to protecting yourself and your family from uncertainties down the road. Call me, Abby Neal, at (480) 699-7992 if you have questions about which plan is best for you.
We know that while cost is important to you, competent and quality service is too. Fortunately, I am an attorney committed to helping people navigate life’s uncertainties. Unlike the unlicensed and uninsured document preparers you see all over the internet, I am an Arizona licensed and insured attorney with significant estate planning experience. Don’t be fooled by the fancy advertisements you see for the document preparers. Read the fine print. Information on document preparer sites is typically “not guaranteed to be correct, complete or up-to date.” Even worse, every document preparer has a disclaimer that their services are “not a substitute for the advice of an attorney” – probably for good reason since in many instances they don’t even know the law! I’ve read countless horror stories about people buying documents from online document preparers that end up disinheriting children, giving assets to an ex-spouse, or giving an agent under a Power of Attorney considerably more authority than anticipated (how about giving unrestricted access to someone’s medical records for life!). Further demonstrating their ignorance of the law, many of the estate plan services offered by document preparers boast a “Fill-In-The-Blank Will Good In All 50 States”. If you see this, run the other way! Since the laws of all 50 states are different when it comes to estate planning, there is no way a single form will can be legally valid in all 50 states. Remember, you won’t know that your online document preparer documents don’t work until it is too late. Then the mess is left to your loved ones to clean up.
Another big problem with online document preparers is that there is no one to counsel you through the process of filling out the forms. Online document preparer LegalZoom even states on its website that 80% of people who fill in blank forms to create legal documents do so incorrectly. Even if a document preparer advertises that they have “professionals” available to help you, remember that those “professionals” are not attorneys, and likely aren’t even the people preparing the documents. They are salespeople. Their job is to get you to buy their product. Period. Making sure their product actually works in your situation is not something they can do. As unlicensed document preparers, they cannot review your answers for legal sufficiency, provide legal advice or apply the law to your particular situation. And, if you find a mistake in a document preparer’s document, there is little to no chance they will fix the document for you without charging additional fees. Countless reviews of these companies state it is unlikely the company will even call you back.
Since no two estates are alike we don’t use some fill in the blank form. The Neal Law Firm’s estate planning documents will be custom drafted to fit your specific needs. Our Estate Plan Design Worksheets are easy to complete. And, if you have any questions filling out the Agreement or during the estate planning process, please feel free to call me, Abby Neal at (480) 699-7992. If you call me with estate planning questions, you will speak to me, a real person and a licensed attorney, not some document preparer sales clerk in another state.
WHAT YOU GET WITH YOUR ESTATE PLAN
Powers & Neal’s estate plans contain the necessary documents you will need in the event of your death or incapacity. Our Basic Will-Based Estate Plan includes:
1. A Last Will and Testament which states your wishes on where and to whom your property will go. You will name a personal representative who is responsible for gathering and distributing your assets and administering your estate. If you have minor children you will also name a guardian for your children in your Will. You may also name a conservator responsible for managing your minor children’s finances.
2. A Health Care Power of Attorney in which you designate a health care agent to make healthcare decisions for you if you are incapacitated. Abigail Neal’s Healthcare Power of Attorney also includes a HIPAA authorization which permits your medical providers to give your protected health care information to your health care agent.
3. A Durable Power of Attorney in which you designate someone to handle your financial affairs if you become incapacitated. If you are incapacitated, your agent will have the authority to pay your bills, manage your assets, and perform other financial tasks.
4. A Living Will which states your end-of-life medical wishes. This includes your wishes about being kept alive artificially while in an irreversible coma or persistent vegetative state. It also includes your wishes about treatment that would delay death from a terminal condition.
5. A Personal Property Memorandum which allows you to dispose of your tangible personal property. Tangible personal property includes items like jewelry, china, furniture, art, antiques and collections. The benefit of the Personal Property Memorandum is that if you change you mind about who you want to give a specific item to, simply tear up the old Personal Property Memorandum and create a new one – without having a see a lawyer to amend your Will.
For people who would prefer their privacy and want to avoid probate, a Trust-Based plan is the best option. The Neal Law Firm’s Trust-Based Estate Plan includes:
1. All 5 documents listed above (Will, Healthcare Power of Attorney, Financial Power of Attorney, Living Will and Personal Property Memorandum) for you and/or your spouse/partner.
2. A Revocable Living Trust that contains a distribution plan for your assets and names successor trustees to manage your assets during incapacity and after death. Your trust can also delay the distribution of assets to young heirs until they are adults. A properly funded trust also avoids probate and keeps your financial picture including assets, liabilities and your distribution plan private.
3. Detailed funding instructions which explain how you transfer different types of assets into your trust.
4. An Assignment of Personal Property that transfers all of your personal property other than vehicles, accounts or other titled items into your trust.