Do You Want Your Loved Ones at the Mercy of Probate Court? Understand the Importance of Estate Planning

Imagine that a vehicle driven by a 35-year-old vibrant, loving, single mother was struck head-on by a drunk driver traveling the wrong way on the interstate.  She died within minutes of the collision.  She did not have an estate plan - who plans on dying at such a young age?  

Because she died interstate (she did not have a will in place), her loved ones endured an expensive, emotional probate proceeding that lasted more than two years.  A Guardian ad Litem (GAL) was appointed by the court on behalf of her child to help determine who would care for the child.  The GAL, a person who didn’t know the decedent or the child, oversaw who would be the child’s guardian.  Meanwhile, the court oversaw the distribution of her assets – she had zero say in the outcome not because she died but because she didn’t plan for the worst.  It sounds like a nightmare scenario – and it was, the decedent was one of my dearest friends.

According to a 2021 study conducted by Caring.com, two out of three people do not have a will or estate plan.  The same survey indicates only 22.5% of adults aged 35 – 54 have estate planning documents in place and adults aged 55 or older who have a will has fallen from 60% to 44%.   The survey seems to indicate there are an awful lot of people - perhaps unknowingly - leaving the control of their assets, and in some circumstances children, in the hands of state courts.

The misconception for some about estate planning is that it is only for the wealthy or the elderly or those with children.  Nothing could be further from the truth.  Estate planning is necessary for anyone who would like control over what happens to their assets, heirlooms, funeral arrangements, etc.  A couple with a minor or disabled child should at a minimum have a will outlining who the child’s guardian should be if the unspeakable happens.  A single adult with a beloved pet likewise should have something in place to ensure the pet is provided for and taken care of as opposed to given to the humane society.  Anyone over the age of 18 that may not feel they have enough assets to draft a will, should still consider having a financial power of attorney and health care power of attorney in place – unless they want the court in control of their finances or medical decisions if they become incapacitated.

What exactly is needed to develop an estate plan?   First and foremost, an attorney.  Yes, you can try to piece together a will or other legal documents on your own, or with cookie cutter online tools, but is it worth the potential risk of making a mistake that will negatively impact your loved ones after you die?  

While estate plans are unique to every individual and some plans are more complex than others, the most basic plans can include a will, health care directives, financial power of attorneys, etc.  A quick list of information to gather or develop in coordination with your estate plan might include:

• A Will
• Revocable Living Trust or Irrevocable Trust
• Beneficiary Designations
• Advanced Health Care Directives
• Financial Power of Attorney
• Insurance Policies and Financial Information
• Proof of Identify Documents (social security card, birth certificates, pre and post nuptial agreements.
• Titles & Deeds
• Online Logins & Passwords
• Funeral arrangements

No matter the complexity, or lack thereof, of your individual estate planning needs, if you want to avoid additional heartache for your loved ones who will be dealing with grief and loss – prepare for the inevitable by investing in an estate plan that clearly outlines your wishes.