Consequences of Not Estate Planning | Bentonville Estate Attorney
Without your plan, you run the risk of Guardianship and Probate. Perhaps even a complete stranger from the State managing your affairs and money in a cold and impersonal way.
When you become incapacitated – unable to make your own legal, financial, and healthcare decisions – due to accident, health incident, drugs, or alcohol your family may have to seek a guardianship in court to manage your affairs!
A guardianship is also sometimes called “living probate.”
You can think of a guardianship as a limited power to oversee and assist you with your affairs, under court approval. Guardianships place limits on the power of the Guardian to do things like sell real estate.
Guardianships are public record!
If you and your spouse (or children) don’t own things together, or own things jointly, they will need a guardianship to be able to access accounts (like a 401(k) or IRA) or sell real estate if needed. It doesn’t matter if you have setup a beneficiary on the account because that only takes effect on death.
Mary never expected her husband John to have a major stroke when he was only 53. John pulled through but was left with enough mental deficits that he needed help managing money and making healthcare decisions. He was also left with a few physical deficits that made climbing stairs difficult.
Mary needed to sell the house to downsize and get a single level home that was easier to get around in.
Mary had to, at an expense of time and money:
- Hire an attorney to get a guardianship ($$$$$)
- Go to court to get a ruling on the guardianship petition
- Get 3 appraisals on the property ($$$)
- Petition the court (ask for permission) to sell the house ($$$)
- Sell the house
- Report to the court with the sales information in it ($$)
- Report annually to the court how the money was used ($$)
- Repeat as needed
- If John needs Medicaid, hope the Judge will approve the Medicaid plan
You lose the right to make your own fundamental decisions and manage your affairs. Your right to make decisions is given to somebody you may not want to make your decisions. Without a plan in place, that is a risk you take.
If worst comes to worse, Adult Protective Services may be called in to take over your decision making. Adult Protective Services will not only take a guardianship over you but will take you into custody and take over your affairs.
Not only this, but you must worry about Probate and court challenges by disgruntled family.