Lack of inheritance documents can cause various problems | Elders


Estate planning lawyers are often asked what will happen without properly drafted estate planning documents in place. This is a difficult question, as the answer depends on the specific circumstances of each individual.

For some families, the property will pass to the beneficiaries in exactly the preferred manner. The simplest example would be a widowed parent with a living child. In this case, the intestate succession would transfer the property to a single child. While there are good reasons why the individual should always have a will in place – for example, for disability planning – there is little concern about who will receive the property.

Likewise, without a power of attorney, if the person becomes incapacitated for a certain time in the future, his relatives will have to apply for guardianship in court. This can be a long and humiliating process and will involve several professionals, the county attorney and the court. Family members can also disagree on who should be the responsible party, forcing the court to make a decision.

Even in the absence of family disagreements, guardianship is a long process. Three separate professionals must conduct assessments of the person in question to determine if they are disabled and to what extent. Reports must be filed in a timely manner, and if not properly filed, they will force the court to postpone the guardianship hearing. These professionals also charge fees for assessments and the court requires that a filing fee be paid for guardianship.

For most individuals, estate planning documents are essential to ensure that wishes are met instead of state defaults.

Married couples with at least one child are a good example of those who need to sign estate planning documents.

In traditional and blended families, both spouses should decide together on the distribution of property after death. This decision should include whether property will be distributed to the children on the death of the first spouse; whether the distributions will be equal among all children, including stepchildren; and how to protect against possible remarriage and loss of property after the death of the first spouse.

Spouses in stepfamilies, and even in traditional families, should never assume that all property will simply pass to the surviving spouse without a will. Depending on the type, the names attached and the value of the property, it may pass entirely to the spouse or may be divided into shares between the spouse and the children of the deceased, or even the parents or brothers and sisters of the deceased.

Likewise, spouses should never assume that marriage alone will provide a legal right to manage the financial or legal affairs of the spouse during their lifetime. Although marriage involves certain rights, spouses must legally allow themselves to manage financial and legal matters. This authorization is a power of attorney.

Likewise, spouses should clearly determine who should be the medical decision-maker if the person is unable to understand the scope and consequences of the medical decisions that need to be made.

In many blended families, the spouses choose each other as the primary attorney, with their separated children as the successor attorney. For those with minor children, each spouse can designate a different person, one after the other, to act as guardian or curator of the child.

State laws ensure that property passes after a person’s death and that incompetent people have someone to speak on their behalf. However, these laws will rarely align with individual intentions or even expectations. They are only there as a last resort.

Executing an estate plan that takes into account potential future goals and issues can ensure that each individual’s estate is managed effectively and according to their own wishes.

Cynthia T. Griffin is an elder law and estate planning lawyer with Burnett Casey Griffin PLLC in Elizabethtown. She can be reached at cynthia@bcglawcenter.com.

About Charles D. Goolsby

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