Your estate plan must safeguard your children, who are counting on you to ensure that they will always be taken care of by the people you want, in a way you want, no matter what happens.
At Sky Unlimited Legal Advisory, we are very passionate about planning for the well-being and care of the children you love. Over the years, we have developed an expertise for advance planning for the care of children in the event of the death of one or both parents. Without this advance legal planning, unthinkable events can (and do) take place:
Ø Your children could be placed into the care of the California Department of Social Services ... even if you have a will in place ... and even if you have a living trust! (Likely this circumstance would be temporary, but you never want your children in the care of strangers - not even for a minute.)
Ø Your children could be put into the custody and care of someone you would never choose, like the one family member who may have good intentions, but you don't want raising your kids!
Ø A judge, who doesn't know you or your family, will decide who will raise your kids, even if it is the last person you would ever want.
Ø A long and nasty custody fight could ensure or there might be a challenge to the guardians you have designated.
Ø Up to 5% of the value of your gross assets could be lost to court costs and other unnecessary fees through the probate process that can tie up your assets for years and deprive your kids of the resources they need.
Ø Unscrupulous people can take advantage of children when they turn 18 and get a check for whatever assets are left.
With advance legal planning, these problems and more can be avoided. A majority of estate planning attorneys do not address these issues. They do not plan from a parent's perspective and they do not have the expertise to do a comprehensive job.
Yes, these occurrences scare us, too! That is why we offer a Kids Protection Plan® with every estate plan we do for families with minor children.
Our Kids Protection Plan® includes a specific set of instructions, legal documents, and an ID card for your wallet. If you are in an accident, your Kids Protection Plan will help to make sure your children are never taken into the custody of Child Protective Services or anyone else you would not want. These clear instructions inform the Police and ensure your children will be raised by people you have selected.
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You may shop around and find a lawyer to create planning documents for you, or you might try creating your own DIY plan using online documents. Then, you’ll put those documents into a drawer, mentally check estate planning off your to-do list, and forget about them.
The problem is, your estate plan is not a one-and-done type of deal.
In fact, if it’s not regularly updated when your assets, family situation, and/or the laws change, your plan will be totally worthless when your family needs it. What’s more, failing to regularly update your plan can create its own unique set of problems that can leave your family worse off than if you’d never created a plan at all.
The following true story illustrates the consequences of not updating your plan, and it happened to the founder and CEO of New Law Business Model, Alexis Neely. Indeed, this experience was one of the leading catalysts for her to create the new, family-centered model of estate planning we use with all of our clients.
The father-in-law story
When Alexis was in law school, her father-in-law died. He’d done his estate planning—or at least thought he had. He paid a Florida law firm roughly $3000 to prepare an estate plan for him, so his family wouldn’t be stuck dealing with the hassles and expense of probate court or drawn into needless conflict with his ex-wife.
And yet, after his death, that’s exactly what did happen. His family was forced to go to court in order to claim assets that were supposed to pass directly to them. And on top of that, they had to deal with his ex-wife and her attorneys in the process.
Alexis couldn’t understand it. If her father-in-law paid $3,000 for an estate plan, why were his loved ones dealing with the court and his ex-wife? It turned out that not only had his
planning documents not been updated, but his assets were not even properly titled.
One crucial part of estate planning that frequently gets overlooked is ensuring your loved ones can easily locate all of your planning documents and other key assets upon your death or incapacity. One simple way to handle this important task is to create a “When I Die” file. According to A Beginner's Guide to the End: Practical Advice for Living Life and Facing Death, this is a “findable file, binder, cloud-based drive, or even a shoebox where you store estate documents and meaningful personal effects.”
This new book, authored by Shoshana Berger and BJ Miller, was recently excerpted in TIME magazine, and the excerpt discussed the importance of creating such a file in order to “save your loved ones incalculable time, money, and suffering” upon your death.
We agree with Berger and Miller, and would add that this file is every bit as important in the event of your potential incapacity, not just your death—and perhaps even more so. We also offer some additional guidance here about how to ensure your “When I Die” file provides maximum efficiency and effectiveness for the people you love.
Death can be a logistical nightmare
Following the death of her elderly father, Berger learned first-hand how agonizing it can be to not have a “When I Die” file. Though her father made his will and trust easily accessible, Berger and her sister spent nearly two years tracking down his other planning documents, assets, and finalizing his affairs.
Beger recalls “sleuthing through his file cabinet and mail and requesting what seemed like a mountain of duplicate death certificates to prove to various companies that he had actually died.”
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 a Family Startup Lawyer™ to learn how to properly address them.
These thoughts all come from a mix of egoic pride, denial, and above all, we imagine, a lack of real education about estate planning and the consequences to your family. Once you understand exactly what planning is designed to prevent and support, you’ll realize there really is no acceptable excuse for not having a plan, provided you are able to plan and truly care about your family’s experience after you die or if you become incapacitated.
Indeed, 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 your family, who will be left to deal with the mess you’ve left behind. While each estate and family are unique, here are some of the things most likely to happen to you and your loved ones if you fail to create an estate plan at all.
Your family will have to go to court
If you don’t have a plan, or only have a will (yes, even with a will), you’re forcing your family to go through probate upon your death. Probate is the legal process for settling your estate, and even if you have a will, it’s notoriously slow, costly, and public. But 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. And like most court proceedings, probate can be expensive. In fact, once all of your debts, taxes, and court fees have been paid, there might be nothing left for anyone to inherit. And if there are any assets left, your family will likely have to pay hefty attorney’s fees and court costs in order to claim them.
This is the second 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 a Family Startup Lawyer™ to learn how to properly address them.
In fact, if your plan consists of a will alone, you’re guaranteeing your family will have to go to court when you die. There’s a saying in the lawyer world of estate planning: “Where there’s a will, there’s a probate.” And it’s no laughing matter.
In our view, a primary goal of estate planning is to keep your family out of court and out of conflict no matter what happens to you. Yet with only a will in place, your plan can fall woefully short of that goal, leaving your loved ones—and yourself, if you become incapacitated —susceptible to getting stuck in an unnecessary, expensive, time-consuming, and public court process.
Here’s why having just a will is not enough:
A will offers no protection against incapacity
A will helps ensure your assets are properly distributed when you die. But it offers no protection if you become incapacitated and are unable to make decisions about your own medical, financial, and legal needs.
Should you become incapacitated with only a will in place, your family would have to petition the court to appoint a guardian or conservator to manage your affairs, which can be extremely costly, time consuming, and traumatic. The first article in this series offers an in-depth look at some of the consequences of failing to plan for incapacity. The Real Cost To Your Family: Not Planning For Incapacity
Your family must still go to court
While you may think having a will allows your loved ones to inherit your assets without court intervention, this is not true. For your assets to be legally transferred to your beneficiaries, your will must first pass through the court process called probate.
Of course, no one wants to believe their family would ever end up battling one another in court over inheritance issues or a loved one’s life-saving medical treatment, but the fact is, we see it all the time.
Family dynamics are extremely complicated and prone to conflict during even the best of times. And when tragedy strikes a key member of the household, even minor tensions and disagreements can explode into bitter conflict. When access to money is on the line, the potential for discord is exponentially increased.
The good news is you can drastically reduce the odds of such conflict through estate planning with the support of a lawyer who understands and can anticipate these dynamics. This is why it’s so important to work with an experienced lawyer like us when creating your estate plan and never rely on generic, do-it-yourself planning documents found online. Unfortunately, even the best set of documents will be unable to anticipate and navigate complex emotional matters like this, but we can.
By becoming aware of some of the leading causes of such disputes, you’re in a better position to prevent those situations through effective planning. Though it’s impossible to predict what issues might arise around your plan, the following 2 things are among the most common catalysts for conflict.
1. Poor fiduciary selection
Many estate planning disputes occur when a person you’ve chosen to handle your affairs following your death or incapacity fails to carry out his or her responsibilities properly. Whether it’s as your power of attorney agent, executor, or trustee, these roles can entail a variety of different duties, some of which can last for years.