If your question isn’t answered below, please give us a call at 757-690-2470 or contact us online. We’re here to help with everything you need for everything that matters.
I’m not wealthy. Why do I need an estate plan?
An estate plan prevents wasting whatever assets you do have on court petitions for adult guardianship at your incapacity and minimizes expense and delay in handling your affairs at your passing. A well-thought-out estate plan gives clear direction to your loved ones and reduces their burdens during those already difficult times.
Do I need an estate plan if I already have a will?
Yes. A will only addresses administration at your death. Your family has no ability to manage affairs during your lifetime with a will alone.
Can’t I just add my spouse or children to my accounts as a joint owner and let them manage things that way?
No. The joint owner can only act with respect to the account where they’re named. If any legal or financial matter needs handled outside of the account, your family may have to pursue adult guardianship. Also, the joint account becomes subject to the creditors of all the owners, and this arrangement may unintentionally disinherit beneficiaries under your will because the accounts usually transfer to the surviving owner.
What is a trust and is it better than a will?
A trust is a distinct legal entity you create by signing a trust document. After it’s created, you transfer most of your assets into the trust or have assets pay on death to the trust. You are your own trustee and can change your trust terms at any time during your life. After your death, the trust is managed by the successor trustee that you’ve named and the assets will pass to your beneficiaries.
Trusts are more versatile than wills because trusts provide a seamless transition for management of your finances if you are incapacitated during your lifetime.
Trusts are also private. At your passing, the successor trustee doesn’t have to file anything with the court and as a result the administration process is more efficient than probate.
PROBATE & ESTATE ADMINISTRATION
My family member just died. Doesn’t someone have to be appointed by the court to probate their estate?
Not necessarily. Whether you need probate depends on the type of assets and the value of the assets owned by the deceased family member.
What will happen to my minor children if I die?
If parents of children who are under the age of 18 die, then the court will typically appoint the guardian nominated in the parents’ will. If there is no will, the court chooses a guardian that appears to be the best choice to raise the child.
As an agent, am I okay if I handle things for an incapacitated adult the way they would’ve done?
No, probably not. A person can do whatever they want to with their own money, but an agent, trustee, or conservator, etc. is duty-bound to act prudently and in the best interests of the incapacitated person. For example, even if the incapacitated person gave gifts of cash to grandchildren with regularity, you can’t do so without proper authority.
What is the difference between an adult guardianship and adult conservatorship?
A guardian is appointed to make personal decisions, including medical decisions, for incapacitated adults. A conservator handles an incapacitated adult’s finances.
Can’t we just have the incapacitated person sign estate planning documents and avoid court?
No. It isn’t enough that they know their name or can physically sign their name. “Incapacity” refers to an inability to receive and evaluate information in order to make reasoned decisions. Also, estate planning documents aren’t valid if signed by someone who doesn’t understand them.
I’ve made decisions for my special needs child his whole life. Do I still have to petition the court?
Yes. It may be the case that care providers are still letting you act, but what if they retire, or you need services with a care provider who doesn’t know you? Also, remember that because this child can’t make his own estate plan, you’ve got to do that for him by being appointed as guardian and nominating who should serve when you can’t.