Amanda Jelks, Probate & Estate Planning Lawyer
Estate Planning Basics & Information
Estate Planning Information For You And Your Family: From The Perspective Of An Attorney
Estate planning is the process of planning and preparing for the management and distribution of the assets, including your home, your bank accounts and retirement funds, personal possessions, and everything you have worked your entire life accumulating. It also includes ensuring your estate is distributed according to your wishes.
Do I really need to have a plan for my estate before I die?
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, comprised of everything they own including your home or any real estate, 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.
When should I talk to a local estate planning attorney?
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 (formerly known as a living will), 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.
In some cases, trusts can help to avoid the probate process or protect some assets from probate.
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. 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 everthing - 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 from our point of view as attorneys who have 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 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.
- 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
result in your separate children not receiving an inheritance at all from you if you die before your spouse
you and your spouse owned everything jointly. Assets and property that are jointly owned by married
become the sole property of the surviving spouse. I cannot count the number of times I've seen a husband
wife own their bank accounts and real estate 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.
leaves the wife's daughter without any of her mother's belongings and without any inheritance from
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.
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. Her estate planning services including estate planning, wills, trusts, probate, and elder law. Let our law firm help you prepare.