Why you should have on clean underwear....
Before I would take a trip, or when I was younger just walking out the door, my mother would ask me if I had on clean underwear. It became an only half serious joke between us, a way to say “I love you” because you just never know what may happen. When I’d ask her why (besides the obvious “eew” response to the idea wearing anything dirty,) she would say, “well, what if you had an accident and find yourself in an ambulance or at the hospital?” Admit it, you are thinking about what you have on right now. If you are like me, your mother’s voice is so ingrained in your consciousness that you hear those words as you are getting dressed sometimes. You may even find yourself saying it to your own children in that awful cycle of becoming your mother. Its kin is the expression, “You wouldn’t be caught dead in those,” because, really, you just wouldn’t want to be!
Having an estate plan is like having on clean underwear. When, and if, something happens, wouldn’t it be better to be ready? And let’s face it, we are all going to die. Yup, you just have to know that no matter what, that event will someday happen. The beauty of an estate plan is that you can have one drawn up for you, you can put it away, and it will be there when you and your loved ones need it.
What is an estate plan? An estate plan is just that, a plan that directs your wishes in the form of legal documents, giving someone you name the authority to carry out those wishes for you when you are gone.
You may say, hey, I don’t need an estate plan because: 1) I don’t have enough money or property to worry about that, 2) I am not old enough yet to worry about it, 3) I don’t have any children, or 4) I am married so everything will just go to my spouse anyway. I am here to tell you that in my work experience and in my personal experience, when something happens, that plan can and often does make a very difficult time for your loved ones that much easier.
My late husband passed away suddenly three years ago. When we started our family, we had estate plans drawn up, wanting to be sure we named the guardians for our children if something should happen to both of us. We revised the documents as our lives changed and as the law changed which might affect our property. The last revision was done a couple of years before he died. I was surprised at how grateful I was to be able to read and act on his wishes: I knew exactly what kind of memorial service he wanted (a party and NO speeches), his hopes we would keep a piece of property in the family, and how to he wanted me to take care of our college age children and myself. Even though I am very competent maneuvering in the legal world, I found I did not have the capacity at that time of grieving. Even with my many years experience counseling surviving spouses as part of our law practice, I would not have been as able to make the myriad of decisions one has to make following a death without the guidance of our plan. You can bet I have since revised my plan, now that I am single with adult children. I want them to have a roadmap that will make it easier when something happens to me. Think of it as a very special gift you leave them.
An estate plan can be a simple will, power of attorney, gift list and health care directive. Your attorney can help you decide if you should consider using a trust, which can be created now or at your death. You will need to decide who you would like named to be responsible for managing your affairs, and your attorney can guide you as to who might be best suited in your life to handle those responsibilities. If you are married, I highly recommend you both have an estate plan that works in tandem with one another. If you have minor children, I strongly urge you to have an estate plan so that you get to name the people who will become their guardians, and how you would like them to be cared for financially. If you are responsible for a family member with a disability, you definitely need an estate plan for their sake. Remember too, that an estate plan is not something that is etched in stone; it can and should be changed as your life changes. Often a document can be amended quite simply, without starting from scratch.
What happens if there is no plan? There are directives within the law for what happens to your property after you die and this is usually handled through a probate court proceeding. Probate court is no longer a “dark ages” kind of experience though, but it does tie things up for a while, usually a year or longer. The problem is that the court will make decisions for your family. If you have young children, the court will select a guardian, or a family member may petition for the guardianship and often supervises your financial assets for them. If you are married but own your business outside the marriage, that business asset may need to be probated at your death. If you own property with your siblings, not having a plan may complicate the shared ownership of the property if the law leaves your children or your spouse an interest at your death.
Power of attorney documents usually come with the estate plan package, but if you had no power of attorney documents in place and became incapacitated, the court would select a court appointed agent for you, or a family member would petition the court to be your agent. In either case, the court supervises the agent which ends up being more time consuming, and has associated costs for the court process. As an aside, if you have adult children who are in college or just making their way in the world, please consider getting power of attorney documents for them so that you can help them handle legal paperwork that should come their way.
My last bit of advice is to take some time to do some of your own research on the topic and interview attorneys to find one that listens, who can explain information to you in a way you can understand, and who you are comfortable sharing your wishes with. Then get out there and have a plan drawn up. You don’t want to go around without clean underwear on, do you?
Article is written by Rose Hollander, a paralegal at Dingeman, Dancer & Christopherson, PLC with over 20 years experience in estate planning, probate and trust administration. She writes from the standpoint of her experience as a widow and from her work with surviving spouses and families after a death.