Do I Need Estate Planning? Answers from Attorney, Amanda Jelks
Estate Planning Information For You And Your Family: From The Perspective Of An Estate Planning Attorney
As a professional estate planning lawyer, I conduct a dozen or more estate planning seminars each year.
Inevitably, someone says, "Can't I just wait until my death is closer to get my estate planning affairs in order?"
Technically, yes, you can absolutely wait to make an estate plan. Practically though, that is the absolute worst decision to make. Waiting until you get "closer to death" to get your affairs in order carries some huge presumptions: (1) it assumes that your death will not happen suddenly and (2) it assumes that you will always be in your right mind while you are living.
Estate planning is the process of planning and preparing for the management and distribution of your assets, including your home, bank accounts and retirement funds, personal possessions, and everything you have worked your entire life to accumulate. It also includes ensuring your estate is distributed according to your wishes or if you have minor children, who would take care of them in your absence. Jelks Law provides all essential legal services related to estate planning.
YES, You Really Do Need Estate Planning!
Working on an estate plan is not just for the elderly and the wealthy. Every person has an estate, consisting of everything they own including your home or any property, vehicles, banking and savings accounts, assets, and possessions. It is oftentimes dangerous to do this on your own. You can learn more from this blog post written by our estate planning attorney on DIY estate planning.
Another thing people often say to me at my seminars is something along the lines of, "I don't have a million dollars, so estate planning doesn't apply to me, right?" The idea that you must be rich before you need estate planning is a myth that has caused many families heartache and turmoil. Estate planning is about so much more than your stuff. Regardless of whether you own a home or property, estate planning is about taking care of your loved ones after your death through a guardianship. If you have minor children, you need an estate plan and an estate planning attorney to designate who will serve as the guardian of those children if something happens to you. Ideally, your estate plan would also designate how the guardian would spend any money or assets you left behind for those children.
What happens if I don't have an estate plan?
If you don't prepare an estate plan, the State you live in has a default plan for you and your assets. The state will choose an individual who would oversee the debt payment and asset distribution of your estate since you didn't choose your own executor, or estate administrator to do so. Here's what the process looks like for Tennessee and Georgia residents.
If you are married without children, your spouse will inherit everything
If you are married with one child, your spouse and child will split everything 50/50.
If you are married with more than one child, your spouse will receive at least one-third of your estate and your children will divide the rest.
If you are not married but have children, your children will divide everything.
If you are not married and have no children, your parents will split everything equally.
If you have already experienced the death of your parents, your brothers and sisters (including half siblings) will split everything.
If you are an only child, your grandparents will split everything - but if they've already experienced death, your aunts and uncles (on both sides of your family) will divide everything.
If any of the people referenced above have died, but they have children of their own, those children will divide whatever their parent would have received.
This can go on for a while, but you get the point and if you don't, call us, that's what we are here for.
For further self-educating, read this post written from the point of view of an estate planning attorney who has been serving Chattanooga for more than a decade. It is an article about what happens to a family member's debt after they pass away.
Will My State Carry Out My Wishes Without An Estate Plan?
If the plan the State has for you is exactly what you would want to happen (for example, your spouse and kids inherit everything), you may be logically wondering "do I need to plan my estate after all".
This is where I come in. The answer is still yes, you do need estate planning and there are several reasons why.
Here are a few reasons to plan your estate.
For starters, it is not uncommon for the house you live in with your spouse to be in only one partner's name. If the titled owner dies, that means the surviving spouse has the legal obligation to share the house with the deceased spouse's children. Those children would have equal rights to the house and the ability to force the sale of the house, if they choose to do so.
Another reason you would still want to plan your estate is to make sure you have a backup plan in place. Let's say you are not married and have one daughter and a grandchild. If you and your child die in a car accident together, or if your child dies before you, your grandchild will inherit your estate. If your grandchild is a minor, their father (who is not your child) would be the presumed guardian over your grandchild's inheritance. If your grandchild's father is not financially responsible, your grandchild may never reap the benefit of their inheritance.
Blended Families and Step-Children
Step-children cannot inherit in Tennessee or Georgia without a will. If you have a blended family, estate planning is especially important for you as the absence of a plan could result in your separate children not receiving an inheritance at all from you if you die before your spouse and you and your spouse owned everything jointly. Assets and property that are jointly owned by married couples become the sole property of the surviving spouse.
I cannot count the number of times I've seen a husband and wife own their bank accounts and property jointly. Husband has two sons. Wife has one daughter. Wife dies first. Husband becomes the sole owner of everything. Husband later dies and his sons inherit everything. This leaves the wife's daughter without any of her mother's belongings and without any inheritance from her mother at all. Morals lead people to believe that the husband's sons will share with the wife's daughter. My experience in this area has shown otherwise. Planning ahead with Prenuptial Agreements can be particularly helpful for blended families and people getting remarried, especially if they have separate children.
If the person set to inherit from you has special needs or otherwise receives government assistance, any outright inheritance from you may result in that person being disqualified for any government assistance (e.g., social security, disability, or Medicaid). It is still possible to leave that person an inheritance, but it must be done through a proper trust as a part of an estate plan.
When should I contact a local estate planning law firm?
Short answer, you should talk to an experienced estate planning attorney now. Everyone 18 years and older should have a power of attorney and an advance health care directive, at a minimum. In its most basic form, a power of attorney allows someone else to make financial, legal, and health care decisions for you if you are incapacitated. Estate planning might also involve the drafting of a will to direct the distribution of your assets to chosen heirs, or even the preparation of trusts if you have property and considerable assets that you want to protect for your beneficiaries.
Jelks Law: Experienced and Compassionate Legal Counsel
If you don't have an estate plan, our attorneys recommend that you start the process today.
Don't let fear keep you from being responsible for your estate. Estate Planning Lawyer Amanda Jelks knows the estate planning process and offers legal experience you can trust.
Our law firm has experienced estate planning attorneys specializing in the following services:
Wills
Trusts
Probate
Power of Attorney
Medicaid Planning
Advance Care Directives and Healthcare Proxies
Digital Assets (including social media, email, pictures and music)
Every family is different and has their own set of circumstances. Our law firm knows this and will work with you on the specifics of your family's estate planning needs. We look forward to answering any questions you or your family members might have.
Please don't hesitate to contact us today about our estate planning services. Our estate planning attorneys and staff look forward to hearing from you.