written by Chris Krupa Downs
Five Tales from an Estate Planning Attorney
As I sit here trying to write this blog, I realize that writing is not my “thing.”
I would much rather talk to people about their kids, their pets, their interests, and the importance of estate planning.
But here, I am writing – One of my 2021 goals is to learn how to do video blogs – this blog!
I can easily talk for an hour about estate planning, what it is and why it is important.
I share tales from my experience as an estate planning and probate attorney and examples using my own life. (My patient husband, David, is aware that I often use our story in my talks.)
I will also throw in a celebrity story about Prince, Chadwick Boseman, Marilyn Monroe, or James Dean.
Did you know that Prince, Chadwick Boseman and James Dean all died without wills? Which may not seem like a big deal, but it is and well, that is another blog.
Today, we will stick with five of the common “tales” I hear.
“I don’t need a Will because I don’t have an estate.”
I have lost count of how often, I have heard “I do not have an estate so I do not need a Will.” My reply is asking questions such as:
- Do you have a car?
- Do you have a bank account?
- Do you own jewelry? Furniture? A home?
I have yet to encounter someone who could not answer yes to some of the questions. Our takeaway from this is that everyone has an estate.
“I don’t need a Will because my spouse inherits everything anyway.”
While there’s truth to this statement, it is not that simple. Let us use an example from my own life.
My husband, David, and I have been married for 12 years. We both were married before and he has two sons form his first marriage. I was not blessed with children.
If David dies without a Will, I inherit a fractional share of certain property and I could find myself owning my home with my stepchildren because in Texas, there are two types of property:
1) Separate property which is the property I acquired before marriage or received from a gift or inheritance during marriage; and
2) Community Property which is the property acquired after marriage, and each of these types of property passes a different way when someone dies without a will (intestate). In my case, I inherit ½ of David’s separate personal property and a 1/3 life estate in his separate real property. I keep my ½ of our community property – whether personal or real – but his half goes to his sons.
So, without a Will, I would own my house with his kids. There are legal protections that allow me to keep living in the house but imagine if I did not get along with his kids, it could be an uncomfortable situation.
For those of you wondering, if David did not have children or if all the kids were ours, the result is much different.
The morale to this tale is that anyone with a blended family should have an estate plan!
The truth to the notion of “my spouse inherits everything anyway” is that if all our kids are from our marriage then if David died without a Will, I inherit his property.
However, dying without a Will causes unnecessary stress for my family and can increase the legal costs of a probate.
Estate planning also lets us plan for the possibility of remarriage (maybe David wants to ensure that some of his property goes to his kids and not my future husband), address estate and gift tax issues, and even give creditor protection to our spouse and children.
“We’re leaving everything to our children and named them as beneficiaries on our life insurance policies and retirement accounts.”
When I hear this statement, my first question is “Are your children minors?” If so, please do not name them as beneficiaries because while they can inherit, they cannot legally control property until they are 18.
The surviving parent is the natural guardian of the person, but they are not guardian of the minor’s estate. So, the parent cannot collect the life insurance or retirement accounts. This means that the parent will need to go to court to become guardian of the estate (or use another legal method). This is a legal process with court control and oversight, and costs money. Further, the child receives the funds at age 18.
With estate planning, we can make sure that our children’s inheritance goes into a trust for our children and we can choose a trustee to oversee the funds and make distributions for our children’s health, education, maintenance, and support until they reach a defined age. (Many parents use age 25 because our kids are out of college.)
Also, if your children are minors, do not name your sibling, uncle, cousin, mother, or best friend as the beneficiary with the thought that they will set the money aside for your child or use it for them. When you name a beneficiary on a life insurance policy, they receive the policy amount, and it is theirs.
They could use the funds to take a luxury trip around the world and they do not have a legal obligation to use it for your child. There, however, is a way to coordinate your life insurance with the goal of having it be there for your minor children and this is part of the estate planning process.
Tale #4: “My family will know who to choose to take my kids if something happens to me & my spouse.”
One of the hardest things to think about is not being there for your children. Yet, this is one of the most important decisions that you must make because if you do not a court will decide and who the Judge picks may not be who you would choose.
As stressful as it is for you and your spouse to think about, it adds stress to your children’s lives if families (and maybe close friends) must deal with a legal battle over who becomes the guardian. You can choose someone with your values and who will raise your children.
You can also designate who would become your guardian if you became incapacitated.
Tale #5: “I can use an online form for my estate planning.”
There are do-it-yourself estate planning resources out there. I am cautious of these because I have probated Wills created from these resources that did not name an executor, did not plan for minor children, and increased the probate costs, and that were not properly executed because there were no witnesses to the typewritten Will.
The most common reason I hear from people who would rather use an online option is that attorneys are expensive.
Yes, it may cost a few thousand dollars for an essential estate plan using an attorney.
However, attorneys are trained to see the issues and to give you guidance and recommendations specific to you, your family situation, and your goals. Spending more now can also save in the long run, because it can minimize the costs of probate when you die.
The conclusion, estate planning is to control the distribution of your property after you die and it can also plan to care for you if you become incapacitated.
- whom you give your property to,
- how you want it to go to them, and
- when you want it to go to them (outright or in trust until a certain age).
You also decide who will be the executor of your estate, who will take care of your children, who can handle financial affairs for you if you cannot, who makes medical decisions for you if you cannot, and to coordinate titles of property and beneficiary designations with your goals.
Disclaimer: Informational purposes only. This blog is not Legal Advice or a substitute for legal advice.
Reach out to Chris for a Consultation and check out her website for more from her!
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