This is an article from Northern California Center for Estate Planning and Elder Law (https://www.norcalplanners.com/) in Sacramento, California, that we thought others may find helpful.
As with many legal matters, estate planning attorneys have their fair share of horror stories from years of working with clients to create an estate plan. Whether its issues relating to property ownership or family disputes over a loved one’s estate, problems in passing on an estate are very common.
Unfortunately, most clients assume that their children or beneficiaries will be willing and civilized enough to work things out on their own. Consequently, many people believe they don’t need to have a formal estate plan. Or, if they do have a plan, they fail to consider the issues that may potentially arise. The truth is, even the most basic estate plan can be quite helpful in avoiding family conflict.
Be sure to include a Will or Trust in your estate plan
Regardless of how much property you have, consider hiring an estate planning attorney to draft a proper will or trust for you. That way, you can ensure that your family and the court, have a clear roadmap for how you want your estate handled. Always remember that the value of an asset is not always seen in terms of money. Some property will have more sentimental value. Discuss the value of certain assets with your family ahead of time to avoid problems in the future, if you leave that property to the “wrong” person.
Do not rely on your children to divide your property the right way
Never rely entirely on your expectation that your children will be able to decide who gets what. In many cases, money and property can divide a family quicker than anything else. You should not assume that your family will simply accept every provision you include in your will. Do your best to discuss potential areas of conflict with them while you are still able to do so.
Discuss the benefits of a trust with your estate planning attorney
In assessing your planning needs, you should discuss with your estate planning attorney whether a trust-based plan is a better option for you than a will-based plan. If you do, then you need to select an appropriate trustee to manage your trust, someone who will make an appropriate fiduciary. That means someone who can be trusted.
Do not try to establish a will or trust on your own
Wills and trusts are complicated estate planning instruments which, if not handled properly, may not be valid. The best thing to do is seek the assistance of an experienced and qualified estate planning attorney who will understand the tax consequences and benefits of the various types of trusts. Also, do not forget to name a successor trustee and successor executor along with your primary trustee and executor. There are various reasons your chosen trustee or executor may not be able to serve in that capacity in the future.
Consider a durable power of attorney as part of your estate plan
Understand that a durable power of attorney can benefit anyone, regardless of your socioeconomic status. The possibility of incapacity is always there. Just in case, you need to choose a trusted friend, associate, or family member to have power of attorney over your affairs in case you become incapacitated.
This is an extremely influential appointment, as the person you choose will have the ability to make most of the financial decisions that you would normally make, so trust is of the utmost importance. A health care power of attorney, just like a financial power of attorney, gives your agent the authority to make health care decisions on your behalf.
Your spouse may not be able to take over everything automatically
Do not assume that your spouse will simply take over and handle things for you if you become incapacitated. It is possible that your spouse won’t be available. For instance, if you are both injured in a car accident and both are incapacitated then you will need someone else to handle your affairs. Ideally, your financial power of attorney and your healthcare power of attorney should not be the same person. That way, no one person will have nearly complete control over your future.
Why you need an Estate Planning Attorney
When it comes to planning for your future and your family’s future, the advice of an experienced and qualified estate planning attorney can be irreplaceable. We can provide the guidance you need to make these necessary choices. We can describe all of your options and help you decide what tools are best for accomplishing your goals.