Recently I was asked if I could write about some of the legal issues that my clients are concerned about. Because this is such a big subject, I’ll try to hit just a few of the main topics. First of all, most of the people who I meet do not have all their legal affairs in proper order. Some have wills, some have done their power of attorney documents, some have a health care directive, and a few may even have a trust. However, very few people have everything in order and up to date. There are countless reasons for this, and I don’t even want to start that conversation, but let’s just say that for whatever reason the vast majority of people will start the process, but not really finish it up properly.
So what does properly mean? In most cases people should have a will, a power of attorney, health care directive, and in many cases a trust would be a good idea as well.
A will is a legal document that tells the court what you would like to have done with your assets. Most people incorrectly believe that a will avoids probate; this is not the case. A power of attorney gives someone the right to handle your legal affairs while you are still living, but are unable to do it yourself. A health care directive answers the questions concerning who will make medical decisions on your behalf if you are not able to. And finally, a trust is going to give directions on settling your affairs and will avoid probate.
Sometimes, people will tell me, “I don’t need any legal documents” and this is very true. People still die every day without their legal affairs in order. This should not be a problem for the person who dies, well, because they are dead. However, this can be a tremendous burden on your loved ones who need to clean up the “financial mess” after you have gone. In my 30 years of working with people, I have never seen anyone who thought the probate process was smooth and easy. To the contrary, it can be very costly and time consuming.
The legal fees, executor fees, and other costs must be paid before your assets can be fully distributed to your heirs. If you own property in other states, your family could face multiple probates, each one according to the laws in that state. These costs can vary widely; it would be a good idea to find out what they are.
Usually nine months to two years is what it takes to settle an estate that goes through the probate process, but it can easily take even longer. During part of this time, assets are usually frozen so an accurate inventory can be taken. Nothing can be distributed or sold without court and/or court executor approval. If your family needs money to live on, they must request a living allowance, which may be denied.
Probate is a public process, so any “interested party” can see what you owned, whom you owed, who will receive your assets, and when they will receive them. The process “invites” disgruntled heirs to contest your will and can expose your family to unscrupulous solicitors.
Your family will lose control of the entire process, because the court determines how much it will cost, how long it will take, and what information is made public.
Now, if all this sounds like no big deal to you, then you don’t need any legal work done. However, if you do care about what happens after you are gone, then you should seek good legal advice.
Disclaimer: I’m not an attorney and the above information should not be considered legal advice.