Jelks Law: Answers to Estate Planning Questions
Planning With Your Family: Advice from an Estate Lawyer
Discussing arrangements for your estate and children after your death, or the medical treatment for you or an ill loved one, can be especially difficult. As a professional estate planning attorney, Amanda Jelks and her legal team understand the sensitivity of the death process and your family's future. As your Chattanooga estate planning attorneys, our aim is to make sure you and your family leave our office with peace of mind.
Common Estate Planning Questions
What Is a Will?
A will outlines how you want your assets and property distributed and specifies guardians for your minor children after your death.
What Is a Trust?
A trust is a financial account, overseen by a third party that can help to avoid the probate process or protect some assets from probate and creditors by removing assets from your estate and placing them in the management of a third party.
What is probate?
Probate is the legal process through which a court oversees the distribution of a deceased person’s assets and the payment of any debts or taxes according to the decedent's will or state law if there is no will.
What is a Power of Attorney?
A power of attorney is a legal arrangement that allows you to appoint someone you trust to make financial, legal, or healthcare decisions on your behalf if you become unable to do so yourself.
What is Medicaid planning?
Medicaid planning involves preparing your finances and legal documents to help you qualify for Medicaid benefits when you need them, while protecting your home and assets.
What is an Advance Directive?
Advance care directives are legal documents that allow you to specify your preferences for medical treatment if you become unable to communicate your wishes.
Specific Estate Planning Questions and Scenarios
Power Of Attorney
How do I obtain a POA for a parent?
A POA could be created for a parent, but only if the parent is of sound mind. You can obtain template documents to create the POA on your own, but it is highly recommended that you consult a qualified estate planning attorney for assistance.
Are there limits to the powers I grant to a POA?
Generally, a POA has a fiduciary duty to act in the principal's interest and not in their own. A POA does not have the right to revoke or alter the principal's will. A POA also can't conduct illegal activities on behalf of the principal. The POA's scope can be specifically limited to certain activities or restricted from others.
The POA for my loved one is not doing their job. How can I take their power of attorney's place and make sure my loved one is properly cared for?
The process for replacing your parent's POA depends on whether they are of sound mind to make that decision for themselves. If they are, you need to have a discussion with your parent, stating your concerns. If they agree, they can revoke their current POA and choose you or another individual to be their new POA by drawing up a new one. If they are not of sound mind to do so, you would need to file for conservatorship and establish that the current POA is not fulfilling their obligations and is not acting in your parent's best interest. You would also need to establish that your parent is not competent to make such a decision.
Can my power of attorney override the decisions I have made in my living will or advance directive?
A medical power of attorney, sometimes known as a healthcare proxy, cannot override your living will, which designates what treatments you would want or not want under certain conditions. A living will would have to be challenged in court by the POA or family members, in the event that undue influence is suspected or a legal action is in process.
Trusts
If I leave an inheritance to my loved one who is receiving social security or Medicaid, will they lose their state benefits?
In some cases, an increase of income or assets through an inheritance can cause an heir or beneficiary to lose state or federal benefits such as Supplemental Security Income or Medicaid. This can however be avoided with a special needs trust. Assets and income placed in the trust would not be counted towards the state and federal limits so that the recipient can continue to receive their benefits.
Conservatorships
My parent doesn't have a POA and now they are ill and no longer competent to sign a power of attorney. How can I help manage their healthcare and assets?
You can petition for a conservatorship over your parent's affairs. This is done through a court proceeding and can be filed as a non-emergency conservatorship or an emergency conservatorship which is a more involved process. In either case you would have to establish that there is not a less restrictive alternative available.
Now that my child with special needs has turned 18 years old, their doctors will no longer communicate with me. How can I maintain control of my adult child's healthcare and manage their assets when my child is not able to handle these things on their own?
You can file for a conservatorship or medical POA over the adult child's affairs in order to make financial and medical care decisions for them. Alternatives for special needs planning include a Power of Attorney, a special needs trust, or Supportive Decision Making.
Wills and Inheritances
What is the difference between a will and a living will?
A will covers your wishes for after you pass away.
A living will covers your wishes for while you are still alive, but unable to make decisions about your healthcare. Living wills specifically deal with end of life care.
Who will raise my children if I don't have a will?
Even if you don't have a lot of money or assets, you still need an estate plan that takes into account who would be the guardian for your minor children if you pass away or become incapacitated. A court would usually make the final decision on the child's custody, but using a will and other estate planning strategies would add considerable credibility to your designation of a guardian.
How do I make sure my adult children (or the guardian of my minor child) are responsible with their inheritance?
This is also something to discuss with an estate planning attorney. You want to make sure that your choice is available, in good health, financially stable, shares your values, and their family dynamic would be supportive and appropriate for your child. Consider reading this article by an estate planning attorney on the guardian selection process.
Can I prevent my son-in-law or my daughter-in-law from accessing an inheritance left to my child?
If your child dies before you, their spouse does not have automatic inheritance rights from your estate. If you die before your child, then upon their death, the spouse can usually inherit from their estate.
If you wanted to specifically exclude your child's spouse from inheriting any portion of your estate that you leave to your child after your passing, and your child's subsequent passing, you can create a trust that exclusively leaves their portion of the estate to them. If however, you wanted your child's spouse to receive a portion of your estate, you would have to specifically include them in your will or a trust.
How can I make sure my ex-wife or my ex-husband doesn't end up with a portion of my estate?
In some cases it is possible that an ex-spouse can inherit a portion of your estate. Some circumstances could include the loss of a mutual child who was set to inherit from you. Others can occur if you didn't update, or properly update, your beneficiary designations for your financial accounts. Careful planning with your estate planning attorney can prevent this from happening.
Business Law and Succession
What happens to my business if I am no longer competent to make decisions?
If you own a business and the situation arises where you are no longer competent to run it, a friend, family member, or another official in your business would have to petition for conservatorship in court if you don't have a business succession plan.
With a business succession plan, which can include a POA for your business, your business can avoid such a situation.
When should I talk to my business partner if I'm leaving my share of the business to a family member in my will?
This should be done as soon as possible, once you decide to leave your business interest to a family member in your will. Equally important however, is making the decision to do so in the first place. You want to make sure that the family member you would be leaving the business to is willing and able to take on the responsibilities involved with running your share of the business. Your business partner would also want to be aware of who they would be running the business with in your absence.
Digital Assets and Social Media
Who could access my social media accounts and online pictures?
Digital assets can include virtual intellectual property such as social media accounts, blogs, email addresses and accounts, domain names, online images and music, and even games and online game personalities can all be considered to be digital assets. A will can name a specific individual to get legal and exclusive access to these types of digital assets. The individual named does not necessarily have to be a family member or the executor of your will. Digital and virtual currencies can also be considered as digital assets with specific designees.
Consult an Estate Planning Attorney
Please note that all of these answers are general and every individual and family has their own set of circumstances. When planning for any one of these scenarios it's best to plan ahead and consult an estate planning attorney. Jelks law can answer all of these questions and more, in depth. Our attorneys are experienced with these types of issues and more. We can help you prepare and plan for you and your family's future.
The attorneys and staff at Jelks Law take pride in our reputation and satisfied clientele. You can see for your self on our testimonials page as well as our reviews on Google.
Contact Our Law Firm Today
Jelks Law offers personalized legal guidance and estate planning and asset protection advice. To start the process, contact us and schedule a meeting with our experienced attorneys using the link at the bottom of the page. At your personalized consultation we will discuss the estate planning process and your own personal planning needs. We look forward to customizing a super helpful estate plan for you.