This is the third in an ongoing series of articles discussing the true costs and consequences of failed estate planning. The series highlights a few of the most common—and costly—planning mistakes we encounter with clients. If the series exposes any potential gaps or weak spots in your plan, meet with one of our Attorneys to learn how to properly address them.
When it comes to putting off or refusing to create an estate plan, our minds can concoct all sorts of rationalizations: “I won’t care because I’ll be dead,” “I’m too young,” “That won’t happen to me,” or “My family will know what to do.” These thoughts all come from a mix of egoic pride, denial, and sometimes a lack of real education about estate planning and the consequences to those we leave behind. Once you understand exactly what planning is designed to prevent and support, you will realize there really is no acceptable excuse for not having a plan in place.
The first step in creating a proper plan is to thoroughly understand the potential consequences of going without one. In the event of your death or incapacity, not having a plan could be incredibly traumatic and costly for those left behind to deal with the mess. While each estate and family are unique, here are some of the things could to happen to your loved ones if you fail to create any estate plan at all:
Your family will have to go to court
We cannot stress this enough, because it is the number one thing that we have to explain to people when someone that they love dies. A will has NO EFFECT unless it is probated through the court. Whether you do not have a plan, or you have a will-based plan, your family will have to go through probate upon your death. Probate is the legal process for transferring property after death, and even if you have a will, it can be slow, costly, and public. With no plan at all, probate can be a true nightmare for your loved ones.
Depending on the complexity of your estate, probate can take months or even years to complete. Like most court proceedings, probate can be expensive. Yet the most burdensome part of probate is the frustration and anxiety it can cause your loved ones. In addition to grieving your death, planning your funeral, and contacting everyone, your family will be stuck dealing with a crowded court system that can be challenging to navigate even in the best of circumstances. The entire affair is open to the public, which can make things exponentially more arduous for those you leave behind, especially if the wrong people take an interest in your family’s affairs.
The expense and drama of the court system can be almost totally avoided with proper planning. Using a properly funded trust, for example, we can ensure that your assets pass directly to your family upon your death, without the need for any court intervention. Instead, so long as you have planned properly, just about everything can happen in the privacy of our office and on your family’s time.
You have no control over who inherits your assets
If you die without a plan, the court will decide who inherits your assets, and this can lead to all sorts of problems. Who is entitled to your property is determined by our state’s intestate succession laws, which hinge largely upon on whether you are married and if you have children. It can be complicated, but spouses and children are given top priority, followed by your other closest living family members. If you are single with no children, your assets typically go to your parents and siblings, and then more distant relatives. If no living relatives can be located, your assets go to the state. It is important to note that state intestacy laws only apply to blood relatives, so unmarried partners and/or close friends would get nothing. If you want someone outside of your family to inherit your property, having a plan is an absolute must.
You can change all of this with a plan and ensure your assets pass the way you want.
If you’re married with children and die with no plan, it might seem like things would go fairly smoothly, but that is not always the case. If you are married but have children from a previous relationship, for example, you may think that your spouse gets property that ends up going to your children. In another instance, you might be estranged from your kids or not trust them with money, but without a plan, state law controls who gets your assets, not you.
Moreover, dying without a plan could also cause your surviving family members to get into an ugly court battle over who has the most right to your property. If you become incapacitated, your loved ones could even get into conflict around your medical care. You may think this would never happen to your loved ones, but we see families torn apart by it all the time, even when there is not significant financial wealth involved.
We can help you create a plan that handles your assets and your care in the exact manner you wish, taking into account all of your family dynamics, so that your death or incapacity will not be any more painful or expensive for your family than it needs to be.
You have no control over your medical, financial, or legal decisions in the event of your incapacity
Most people assume estate planning only comes into play when they die, but that is dead wrong. (Yes, pun intended.) Though planning for your eventual death is a big part of the process, it is just as important—if not more important—to plan for your potential incapacity due to accident or illness. If you become incapacitated and have no plan in place, your family will have to petition the court to appoint a guardian or conservator to manage your affairs. This process can be extremely costly, time consuming, and traumatic for everyone involved. In fact, incapacity can be a much greater burden for your loved ones than your death. We can help you put planning vehicles in place that grant the person(s) of your choice the immediate authority to make medical, financial, and legal decisions for you in the event of your incapacity. We can also implement planning strategies that provide specific guidelines detailing how you want your medical care to be managed, including critical end-of-life decisions.
You have no control over who will raise your children
If you are the parent of minor children, the most devastating consequence of having no estate plan is what could happen to your kids in the event of your death or incapacity. Without a plan in place naming legal guardians for your kids, it will be left for a judge to decide who cares for your children. This could cause major heartbreak not only for your children, but for your entire family.
We would all like to think that a judge would select the best person to care for your kids, but it does not always work out that way. Indeed, the judge could pick someone from your family you would never want to raise them to adulthood. And if you do not have any family, or the family you do have is deemed unfit, your children could be raised by total strangers.
If you have several relatives who want to care for your kids, they could end up fighting one another in court over who gets custody. This can get extremely ugly, as otherwise well-meaning family members fight one another for years, making their lawyers wealthy, while your kids are stuck in the middle.
If you have minor children, your number-one planning priority should be naming legal guardians to care for your children if anything should happen to you. This is so critical, we have developed a comprehensive system called the Kids Protection Plan® that guides you step-by-step through the process of creating the legal documents naming these guardians.
Naming legal guardians will not keep your family out of court, as a judge is always required to finalize the legal naming of guardians in the event of death or incapacity of parents. However, if it is important to you who raises your kids when you cannot, you need to give the judge clear direction. On top of that, you need to take action to keep your kids out of the care of strangers over the immediate term, while the authorities figure out what to do when something happens to you. We handle that in a Kids Protection Plan® too.
You can get started with this process right now for free by visiting our user-friendly website:
No more excuses
Given the potentially dire consequences for both you and your family, you cannot afford to put off creating your estate plan any longer. As your Personal Family Lawyer®, we’ll guide you step-by-step through the planning process to ensure you have taken all of the proper precautions to spare your loved ones from needless frustration, conflict, and expense.
The biggest benefit you stand to gain from putting a plan in place is the peace of mind that comes from knowing that your loved ones will be provided and cared for no matter what happens to you. Do not wait another day; contact us to schedule a Family Wealth Planning Session right away at 817-479-0076.
This article is a service of The Mundheim Firm, PLLC, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you have ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.