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Legal
Disclaimer: Although I am a lawyer by profession, I am not YOUR lawyer. All
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One of the roles of an attorney that I take to heart is educating others. I finally got the chance to answer some questions from Honeycomb Moms about Estate Planning. I found that a lot of Millennials have the same questions so I jumped at the opportunity to collab for a blog post on this topic. Check out our discussion below and don't forget to share!
"Where do I include any wishes I have regarding the
funeral? Is there a separate form?"
Although
you technically can put your funeral wishes in your will, it is best practice
to have them in a separate form, "Final Arrangements." This is
because probate usually doesn't start until after the funeral. Any wishes or
instructions that you may have left in the will may not be found in time. Also,
the will is where you dispose of property. By law, your body isn't the property
of the estate.
"Do you recommend couples make one joint will, or
should each person do one separately? Why or why not?"
It
depends on the wishes of the couple. Joint wills are done typically with the
understanding that if one spouse dies, the surviving spouse will inherit
everything and when that spouse dies, the remainder of the estate will go to
the children.
This
sounds like a "no-brainer" at first but there are some potential
issues that may arise. What if you
wanted to set aside money for your grandchildren? What if the surviving spouse
remarries? What if you wanted to give your child some of his inheritance early
for a down payment on a home or to start a business?
It is
best to discuss your wishes with your partner and your attorney so that she can
best recommend how to proceed.
"What happens if I detail a plan regarding a shared
asset that my husband doesn't agree with?"
It is
best that the couple comes to an agreement about their assets before meeting
with their attorney. If you purposely leave an asset unmentioned in a will,
depending on the language of the will it may default to a residual clause. This
means whoever gets the remainder of the estate would get the asset. If there is
no residual clause, the asset will be treated intestate and proceed through the
courts to be divided up according to state laws. This can be costly and sort of
defeats the purpose of having a will made in the first place.
"How do I stipulate specifics like wanting children to
take ownership of a business when they are of a certain age?"
Business
Succession Planning, something I encourage every business owner to have, is a
separate plan for how a business will proceed in the event of the death or
incapacitation of the owner.
"If we only have one child when we make a will but
would like to plan for more, how do we handle that in the will?"
Drafting
a will with ambiguity or trying to make it inclusive of non existent persons
can be problematic. You can amend your will as your family grows by adding a
codicil.
"Do wills have to be signed or does an email to my
closest family and friends suffice?"
Each
state has its own legal requirements on how to legally execute a will.
"Should I include a power of attorney form with my
will?"
A
Power of Attorney is a standard Estate Planning document and it can be executed
at the same time as your will. It is prudent to plan for incapacitation, choose
an agent, and discuss your wishes with your agent beforehand, in the event that
incapacitation should happen.
"Do wills cover who gets our child, or is that a
separate form?"
You
can name the preferred guardian of your child in the event of your death. Keep
in mind that the surviving parent will automatically get custody of the child
unless the court has good reason to interfere. If there is no surviving parent
or if the court finds the surviving parent unfit, it will award guardianship to
whom it sees fit. This is not automatically the grandparents or aunts and
uncles but rather who the court sees fit. Meaning, someone that doesn't know
you or your family will make this important decision on your behalf. That is
why it is best to name a guardian and an alternate guardian (in the event that
one is unable to perform) in your will.
"I don't plan on the people in my will becoming drug
addicts or mentally impaired, but how do I handle that with language in my will
just in case?"
This
is actually a common concern. If you are concerned with a minor or adult child
blowing through their inheritance or being taken advantage of, you may want to
consider a trust. This will allow you to place stipulations and most
importantly, appoint a trustee to oversee the distribution of the assets.
"Can you point me to any reputable free templates for a
will?"
Lol, I
can't and I promise this is not a biased answer. There are no two families
alike so there is no cookie cutter approach to counseling families. I think it
is pivotal to have a licensed attorney listen to your needs to best ensure your
wishes are documented as intended.
"When should I use a trust?"
There
are many different types of trusts, each particular to a certain purpose.
Generally speaking, a trust can be a solution for families with special needs
members, high net worth, or a family that wants to leave their assets in a
structured manner for their children. These are the most common needs bet
definitely not all.
"About how much is normal to spend for an attorney
handling estate planning for my family?"
Estate
planning typically starts around $400 and can go up in price depending on the
complexity of the needs.
"Should I hire an attorney? Why or why not?"
Yes. I
love a good deal just like the next person but I don't think legal services is
one of those things you should skip on. My mentor told me that the very fist
probate case she litigated was a Legal Zoom will. So with that said, discussing
your wishes with an attorney can assure that you are correctly translating your
wishes to paper.
If you are in Georgia and have Estate Planning needs, contact me:
404-990-3504
Crystal@svmlawoffice.com
Always secure the bag,
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