One Thing You Need to Understand About Estate Planning | Bella Vista Estate Planning Lawyer
There is one thing you need to understand about Estate Planning more than anything else!
If you don’t create your own estate plan, you are subject to the default, expensive, generic, public, estate plan the government has already written for you!
What Happens in Case of Mental Incapacity?
Mental incapacity happens for a variety of reasons – medications, accidents, dementia, or major medical incidents. All of these can lead to not being able to make rational, informed decisions.
When you become unable to manage your own legal, business, or healthcare matters (mental incapacity), hopefully somebody you want and trust steps up.
That person will have to go to court and get a guardianship. A guardianship allows them limited power to manage basic affairs. All too many decisions, like selling real estate or other stuff, require the Judge’s approval. And, if nobody steps up, then Adult Protective Services may get involved, putting you under full government control.
A guardianship is as expensive or more expensive than a complete estate plan.
Your life is literally controlled by the court and is in the public record.
Estate Distribution
Your final estate is subject to the State’s default distribution plan. Most people don’t like the terms and conditions of this plan. Again, it must be under a Judge’s Supervision.
Probate is under the court’s control, not your family’s control.
The State’s default plan is call intestate succession. In other words, if you don’t create a Will or Trust, the state has created one for you. Even when the wishes are known, they are ignored, and the law applies.
Probate is
- Public
- Expensive
- Time Consuming
- Emotionally Trying and Tiring
- Controlled by the Court, not Your Family
Here are the highlights (in Arkansas):
- Spouse gets 1/3rd of the personal property like furniture and cash
- Spouse gets a 1/3rd life estate in real estate
- Children get 2/3rds outright which can destroy access to government benefits like Medicaid or SSI
- Children over 18 get their distribution in hand. They can squander it as them please.
- Children under 18 get their money in a court supervised trust. Then when they turn 18, the money is paid to them.
- Every step of the process requires a Judge’s signature.
Choices
Given the choice, and the choice is yours, would you rather be in control or let the court be in control? Would you rather these affairs be handled privately by your family or publicly by a court? Do you want to control who gets what, when, and how much? And for your young children, if you have any, do you want a say in who raises them and controls their money?