by Andrew Moore | December 14, 2018
Most American adults do not have a will or living trust, according to a 2017 survey from Caring.com. The survey cites two main reasons that people gave for not getting estate plans: (1) putting it off until later; and (2) lack of assets. But should you have an estate plan? The answer is simple – yes.
Here are the top five reasons why you should have an estate plan:
CHOOSE WHO GETS YOUR STUFF
If you don’t decide who gets your property after you die then each state decides for you. State intestacy laws govern your assets if you failed to plan for your assets before your death. Your heirs will still have to go through the intestate probate process if you do not have a will, trust or other means of transferring your property after you die.
CHOOSE WHO TAKES CARE OF YOUR KIDS
If you die with children under 18 and there is no surviving spouse and you have not chosen a guardian, then a court will appoint someone to care for your child. The court appointed guardian may not be the person you would have chosen to care for your child. In Colorado, a parent may appoint a guardian by will or other written instrument for any unemancipated child under 18 the parent now has or may have in the future. C.R.S. §§ 15-14-201, et seq.
CHOOSE A PERSONAL REPRESENTATIVE
When you sign a will, you can choose who will do the probate paperwork and break up fights over any property that you own when you die. This person is called the personal representative. The personal representative has significant power and responsibility to administer your estate. It is important to choose a personal representative that you trust and can count on to wind up your estate.
AVOID A CONSERVATORSHIP PROCEEDING
If you become physically or mentally unable to make financial decisions for yourself, then no one is legally able to make financial decisions for you unless you have a valid durable power of attorney. If you do not have a financial power of attorney, then the court will appoint a conservator to make the financial decisions for you. Conservatorship proceedings can be expensive, time-consuming, and stressful for your loved ones. The time and money spent on drafting a financial power of attorney is much better than having to go through the conservatorship process.
MAKE YOUR OWN MEDICAL DECISIONS
If you become incapacitated, like end up in a coma or are under general anesthesia for surgery, and you do not have a medical power of attorney, then each state has default laws that specify who can make your medical decisions. This can be a problem if you are unhappy with people that the state has chosen to make your medical decisions for you such as doctors, courts, or family members that you disagree with.
While a medical power of attorney functions in situations where you are incapacitated, you can have a living will, aka advance medical directive, that specifies your end-of-life wishes if you are both incapacitated and in a vegetative state or are terminally ill. In a living will, you will choose when the doctors must “pull the plug,” and specify your nutrition or hydration requirements. If you do not have a living will, time consuming fights over your medical care may occur among family members. The Terri Schiavo case is a notable example of a 15-year fight over end-of-life decision making where there was no living will. Lastly, medical bills continue to accrue while the legal fights continue. Like the other estate planning documents mentioned in this blog post, the cost and time to get a living will are small compared to the potential problems and costs of not having one.
Estate planning is an important issue which will impact your entire family when you become incapacitated or die. Your estate plan should include the most important financial and life care issues for you and your loved ones. Even if you don’t like the idea of an estate plan, your family will appreciate it because an estate plan will make things easier on them during stressful medical or financial situations while you are living and after you die.
Give yourself and your loved ones peace of mind and get an estate plan.
Andrew Moore is an Attorney at The Whitmer Law Firm, LLC. Andrew represents clients on various water, business, trust and estate, and real estate matters.