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, Advance Care Directives, Conservatorships and Guardianships, and Powers of Attorney:
Wills
Wills are one of the most important tools used in planning your estate. A will is a formal expression of how you would like your estate to be distributed after your death. 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. More information on wills
Trusts
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. There are multiple types of trust. The most common are contingent trusts, special needs trusts, revocable trusts, and irrevocable trusts.
Contingent Trust.A contingent trust is a trust that only comes into existence if certain conditions are met. Contingent trusts are often used for minor children to manage the way that child's inheritance is distributed to their guardian to ensure that the inheritance is spent responsibly. Of course, if your child is an adult at the time of your death, this trust would never come into existence. Most parents, however, will keep their child's inheritance in trust for several years after the child turns 18 to ensure that the child is financially responsible to manage their inheritance once they receive it.
Special Needs Trust. The purpose of a special needs trust is to ensure that a person who is receiving government assistance (e.g., disability or Medicaid) is not disqualified from receiving that assistance as a result of that person's inheritance from you. To be clear, you can still leave an inheritance to a person with special needs but it must be done through a special needs trust, which is sometimes also referred to as a supplemental needs trust.
Revocable Living Trust. A revocable living trust is a trust that comes into existence immediately, before your death, and can be altered at any time. While this can certainly cause clients to raise an eyebrow (or two), a qualified estate planning lawyer who focuses in the area of estate planning will explain the way this trust works in detail so that you understand and become comfortable with it. As the creator of the trust, you are the grantor (creator), trustee (manager), and the beneficiary of the trust as long as it is before your death. Placing your assets in a revocable trust does not limit your access to those assets and does not change the way you have used those assets prior to creating the trust. Revocable trusts are a common estate planning tool as they can eliminate the need for probate after your death - this would save your estate a significant amount of money (which would increase the inheritance to your loved ones) and allow your loved ones to access their inheritance much sooner than they are allowed to do so when a probate takes place (12 month minimum in probate minus special circumstances).
Irrevocable trusts. Irrevocable trusts are the least common of those mentioned here. Most people that form irrevocable trusts are doing so as a part of Medicaid planning. People that are anticipating an illness that would result in their placement in a long-term care facility are often concerned that they will need government assistance (Medicaid) to help them pay for the ever-increasing costs of such facilities. They have also heard horror stories about the State "taking their house" after their death to pay the State back for their Medicaid benefits. Irrevocable trusts cannot be changed and are different from revocable trusts in that you cannot be the trustee (manager) of the trust, which means that you lose control over the assets owned by the trust. If drafted properly, you would still have the right to live in the house, but you would not have the right to sell the house (among other things). Irrevocable trusts are not for everyone and carry risks that can be explained only by a qualified estate planning attorney.
For more information on elder law, Medicaid, and long term care planning, see our elder law page.
We Will Also Teach You About Powers Of Attorney and Advance Care Directives
In its most basic form, a power of attorney is a person you designate to make legal, healthcare, or financial decisions for you in the event of your incapacitation. 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.
Powers of Attorney:
How do I obtain a POA for a parent?
What happens to my business if I am no longer competent to make decisions?
Are there limits to the powers I grant to a POA?
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?
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?
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?
Advance Care Directives (Living Will):
What is the difference between a will and a living will?
Can my power of attorney override the decisions I have made in my living will?
In its most basic form, a power of attorney (POA) is a person you designate to make legal, healthcare, or financial decisions for you in the event of your incapacitation. 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 estate planning attorney on how a power of attorney could be the least expensive option for you.
Conservatorship or Guardianship:
Here are a few common questions about estate law, conservatorships, and guardianships:
Who will raise my children if I don't have a will? Consider reading this article by our estate planning attorney on the guardian selection process.
How do I make sure my adult children (or the guardian of my minor child) are responsible with their inheritance?
Can I prevent my son-in-law or my daughter-in-law from accessing an inheritance left to my child?
How can I make sure my ex-wife or my ex-husband doesn't end up with a portion of my estate?
When should I talk to my business partner if I'm leaving my share of the business to a family member in my will?
If I leave an inheritance to my loved one who is receiving social security or Medicaid, will they lose their state benefits?
Conservatorship
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.
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.
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 will be serving you to make sure your family is provided for. 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 Estate Lawyer Today
To start the process, contact us and schedule a meeting with our estate planning attorneys using the link at the bottom of the page. During your visit we will discuss the estate planning process and your own personal planning needs. We look forward to customizing a super helpful plan for you.
Our Elder Law and Estate Planning Attorneys Look Forward to Meeting You!