Why would I want to avoid probate?
Many folks want to avoid probate because it is a public process; this means that anyone can view and copy your probate file at the courthouse, including predators and nosy neighbors. Your probate file includes all of your formerly private financial and beneficiary information.
In addition, probate is a court process so it takes a lot of time, money, and jumping through legal hoops. The probate process can take anywhere from 8 months to years so there is inevitably some delay in getting your assets to your beneficiaries. The probate process also exposes any asset transfer to tax consequences that may be avoided through estate planning.
Who needs estate planning?
If you’ve had your 18th birthday, you need your own estate plan. Without it, you have no control over what happens to your assets after you die. Either the court or state law will determine what happens with little to no input from you. The court (or state law) may not make the same decisions you would.
If you want to decide any of the following, you need your own estate plan:
- Who makes medical decisions on your behalf if you are not able to do so yourself.
- Who raises your children if you become incapacitated or die.
- Whether you are hooked up to life support machines to artificially extend your life if you are in an irreversible coma or persistent vegetative state.
- Who, when, and how your heirs get your assets.
- How to pass your assets to your chosen beneficiaries in asset protection trusts so that they can’t be taken in a divorce, bankruptcy, or lawsuit.
Can I Do My Own Estate Planning?
Legally, you are entitled to draft your own estate planning documents; in practicality, this is, likely, not in your best interests. While it may appear that you are saving money by not paying legal fees, it is likely to cost you, or your beneficiaries, more money in the long run or your plan may not actually accomplish what you intended or even be completely enforceable.
For example, what if an inheritance you pass to a loved one disqualifies her from receiving governmental assistance? What if your daughter’s inheritance is taken by a divorcing spouse or used to pay a judgment in a car accident law suit? What if your documents are legally invalid and the court chooses who raises your minor children or they are placed into foster care? These are all examples of a plan that did not work as you intended.
If you use downloaded forms from the internet, there is no qualified estate planning attorney who will review them or counsel you about how to convey your intentions. The forms are also most likely not specific to your state. You also need to be aware that only licensed lawyers can provide legal advice and draft documents specifically for you; this law was created to protect consumers like you.
“One size fits all” forms actually fit no one. It may surprise you, but there is much more to estate planning than just filling in the blanks on a form. When you work with a qualified estate planning attorney, each plan is customized to your individual family and financial situation, your goals and wishes are incorporated and you receive legal counseling.