Jelks Law: Important Legal Advice From A Chattanooga Estate Lawyer
As a professional estate 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. 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.
Basics From Our Estate Planning Attorney:
Wills and Trusts Conservatorships and Guardianships:
What Is a Will
A will is one of the most important tools used in planning your estate. A will is a formal expression of how you would like your estate, including assets such as money and property, to be distributed after your death as well as your funeral wishes. A will is much more than words on a piece of paper. It must comply with the requirements set forth under State law. Contrary to popular belief, in order for a will to mean anything, it must go through probate after your death. The word "probate" means "to prove a will". As such, a will means nothing until a court says it does. Our estate planning law firm knows exactly how the courts work.
What Is a Trust?
A trust is another estate planning tool which can be used to help distribute your assets after your death. A trust allows for a high degree of control over how and when your estate is distributed to your chosen beneficiaries. There are multiple types of trust. The most common are contingent trusts, special needs trusts, revocable trusts, and irrevocable trusts.
For more information on elder law, Medicaid, and long term care planning, see our elder page law.
What Are Conservatorships?
A conservatorship is a legal proceeding where a judge appoints someone to make decisions for an incapacitated person who either did not have a power of attorney or their power of attorney is neglecting or abusing their powers. Conservatorship proceedings can be expensive and you lose the ability to choose who makes your decisions. Our estate attorney wrote this piece on the most common questions about conservatorship.
What Is a Guardianship?
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.
We Will Also Teach You About Powers Of Attorney and Advance Care Directives:
What is a Power of Attorney?
A power of attorney (POA) is the appointment of another individual to legally handle your personal and financial affairs including paying bills, handling bank and retirement accounts, paying rent or mortgage, and conducting real estate transactions. In most cases concerning estate planning, the POA doesn't usually come into effect until you are unable to make decisions for yourself. A power of attorney is only effective while you are living. As such, after your death, the only other thing your power of attorney can do is handle your funeral arrangements and the disposition of your body if you've given them the power to do so. Check out this blog post by our firm on how a power of attorney could be the least expensive option for you.
What are Advanced Care Directives and Living Wills?
An advance care directive is a legal document that specifies your wishes involving your medical care, especially in the event that you cannot make decisions for yourself. It can include the appointment of a medical POA, or a healthcare proxy, to make medical decisions for you in the event you cannot do so for yourself. It can also include a living will, which details your wishes for end-of-life medical treatment, including your preferences for using or not using life-sustaining measures such as feeding tubes or ventilators.
Common Estate Planning Questions
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.
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.
Discuss and plan with your family
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.
Contact Our Law Firm Today
Jelks Law offers personalized legal guidance and estate planning 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.