Okay, maybe I am being dramatic by calling them “dangerous.” But, frankly, as a lawyer who routinely works in estate planning, probate, and guardianship matters nearly all the time, I see the same issues in cases year after year. If these issues are present, I know that our client is in for a complicated (and often expensive) fight.
Don’t get me wrong, as a lawyer, I like a good fight, but I always feel it’s a shame when someone could have fixed these problems in advance but chose to turn a blind eye and do nothing about them. Without further adieu, here they are. And, since I am the kind of guy that won’t just curse your darkness but light a candle, I include suggestions from the experts on how to resolve the problem.
Issue 1: The Internet Estate Plan.
Poor Uncle Joe. He was just trying to save a couple of bucks by getting on the “interweb” and paying $39.95 for his one-size-fits-all estate plan. Unfortunately, what Joe didn’t realize is that the plan documents were written by a non-lawyer in California. As a Texas resident, Joe’s will probably won’t work in court, and it’s ultimately the same as not having a will at all. The Fix: Call a lawyer and get a real estate plan done. These days, the process is typically very easy and cost-efficient.
Issue 2: The Family that Hates Each Other.
Whether the problem is where they have Christmas each year or what they have for dinner, some families just don’t get along. Unfortunately, for some, these issues translate to significant costs when Mom or Dad die, and the fighting siblings go to Probate Court. Forget the fact that your older sister tormented you all your life (and she’s now an emotional terrorist). The Fix: Easy. Realize that your disdain for your family member is usually okay but, in court, it translates to significant extra cost. Don’t try to settle old, bad feelings in court. Don’t look at Probate Litigation as a way of getting even but rather as a business deal. Consider the cost versus potential benefit of any will contest or probate fight. Be strategic in how you deal with these issues.
Issue 3: The Brother/Sister/Uncle Who Holds All the Cards.
Frequently, when senior members of the family start needing more round-the-clock support, it’s common for a relative or caregiver to move in so they can help. After months or years of this aid, occasionally the caregiver starts to acquire a bit more influence than they should. Sometimes, what starts as a gentle suggestion to the senior turns into the caregiver influencing the senior with suggestions (or even demands). In some cases, this insistent behavior is coupled with the caregiver having too much access to the senior and her assets, for example: the caregiver is allowed to sign checks (and/or be listed as a signer on the bank account), being named as Executor in the Last Will and Testament, and/or moving into the house with the senior.
Don’t get me wrong, while each of these alone can legally be permissible, the problem starts to develop when the caregiver begins to feel more entitled to assets than anyone else. Maybe the caregiver has taken diligent care of the senior (including having to do some of the messier, more intimate tasks like bathing and helping go to the bathroom) and feels as though he or she should be given some payment. When the senior becomes incapacitated or dies, the caregiver holds a large amount of access to the senior’s assets, heirlooms at home and may even make important decisions regarding the estate. The Fix: In situations where the senior’s children or other family members can participate, it serves as a good check and balance to have someone other than caretaker serve as the convenience signatory on bank accounts, the executor, etc. In other words, don’t give one person too much power.
Issue 4: The Second Marriage with Kids and Property.
Recently, in my blog entitled “Family 2.0: Helping Blended Families in Estate Planning, Probate and Guardianship” I discussed the common changes in today’s American family versus the family structure of the past. Second and third marriages (with kids from prior relationships) are very common. What’s not as common, unfortunately, is the tendency for families to recognize that the law treats his kids and her kids differently from “our” kids (in other words, children from prior marriages won’t always be treated legally identically as biologically related or formally adopted children).
Also, in community property states such as Texas, the melange of family members and different characters of property (i.e., separate property or community property) can be extremely complex and can impose a significant additional expense for families in probate matters. The Fix: While it may be a bit complicated, the solution is rather easy. Visiting a qualified estate planning attorney can result in a straightforward plan that both directs your assets exactly where you want them to go but also ensures that your property (both separate and community property) are accorded their proper characterization.
Remember, in Texas, if you die without a Last Will, you’re married and have kids from a prior marriage, the law gives your surviving spouse and your children a share of your assets. If you have minor children, your ex-spouse (who you may not like) is the natural guardian of your child and may have a say over property your child inherits (light bulb: this means your new spouse and former spouse have to work together on some property decisions). By failing to have a written plan, you may have chained them together for a little bit (eek!).
Issue 5: The “I Don’t Need a Will” Person.
Does everyone need an estate plan? In a word, no. If you rent an apartment, have no significant assets (only personal property like your TV, socks and family Bible), then you probably don’t need to spend the money on a proper estate plan. But, if you have nearly anything more, you should, at least, talk to a lawyer so you can properly consider the issues. If you have any assets (especially real property), cash in the bank, a retirement, stocks/bonds, or assets worth more than a total of about $50,000, you should have a simple plan. If you’re assets total more than $1 million, your plan should be a little more complex.
If you have a taxable estate (more than $5 million, indexed for inflation), you should have a tax-planned estate that allows you to minimize tax consequences and transition your wealth into the next generation. But…all that said… Whoever you are, in my opinion, you need a plan. The Fix: Perhaps easiest of all, this fix simply involves calling a lawyer. For those of us without tax-implied estates, you can usually get a very solid estate plan (that includes protection for disability and death) for less than a month’s rent or mortgage payment. Think of that for a moment, for less than one month’s rent you can ensure your family is protected, and your wishes are carried out. There’s no excuse to move forward. For more information, or if we can help you with your estate plan, call our firm today. Our information is below.
Remember, though every case is different, if you know someone with these issues, I recommend finding a qualified estate planning & probate lawyer to work with immediately to implement the fix.
Chris Parvin is an Estates and Business attorney at the Dallas, Texas law firm of Parvin Law Group, P.C., where he serves as the Managing Partner. Mr. Parvin is Board Certified in Estate Planning & Probate Law by the Texas Board of Legal Specialization and serves as an Adjunct Professor of Law at Texas A&M University School of Law. He serves clients in estate planning and probate matters throughout Texas.
Parvin Law Group, P.C. is a Concierge Law Firm in Dallas, Texas serving clients in the fields of Estates, Probate, and Business.