06 Jul 10 Tough Questions to Consider When Planning Your Estate: Part 1
1) Who is responsible for your children when both parents are deceased?
While this is not a scenario anyone wants to imagine, if the unfortunate occasion does arise and your children are left in need of a guardian, you absolutely want to make provisions beforehand for their care and well-being. This is a crucial question you must answer to order to avoid having a judge who knows nothing about your family make the decision for you. If you do not appoint a legal guardian for your minor children, the court will decide who will become their legal guardian, taking the best interest of the children into consideration. This may mean that your children are left in the care of someone you would not have chosen for them. Most parents assume they will both live until their children are grown and on their own, however, anything can happen in life. You want everything to be legally in order for your children so they are well taken care of in your absence.
2) What if the entire family passes away at the same time, as in a common natural disaster or accident?
For most people, their estate goes to their spouses, children or parents upon their passing, however, what would happen if you are all involved in a common disaster? If you have set up your estate and all individuals specifically named in your will have passed with you, then the court uses the table of consanguinity to determine the future of the estate. This table essentially lays out a next of kin ranking system that guides the court in it’s determination. It is in your best interest to consider naming a trusted friend or extended family member to care for your estate in order to keep your belongings out of the hands of the court system.
3) What about any descendants not mentioned in your estate plan?
Do you have a son or daughter from some previous marriage that your estate lawyer doesn’t know about? You will need to do a thorough accounting of everyone you would like to include in your estate plan so that no one is unintentionally left out. This will help avoid putting your family through some very tough and possibly uncomfortable litigation processes. Make sure you are very specific in who receives what part of your estate as this is binding by the courts and will be what they follow to the letter. You can opt to include a negative bequest clause naming individuals you specifically do not want to receive any part of your estate under any circumstances. If someone feels they have been left out of your will they may be able to contest the will under certain circumstances. This process is incredibly costly and time consuming, not to mention it can damage family relationships.
4) What are the other important relationships in your life?
If you have any relationships with people outside of your marriage, it is time you come clean with your lawyer. There are several rights and obligations these people might be entitled to depending on the kind of relationship you have with them. This is where our advice in #3 comes into play as well: be very specific about who you name in your will and who you absolutely do not want your estate going to. Explain everything to your lawyer to help prevent possible lawsuits, hurt feelings, and embarrassment for your family members after your death.
5) Any genetic material on ice?
Do you have any genetic material preserved? Your lawyer might not ask but if you do, go ahead and disclose everything. Genetic materials include sperms, eggs and fertilized embryos that can result in the conception of a child. Discuss with your lawyer if you want them included in the estate plan or not. You will also want to express your wishes as to how this material is to be dealt with. Not doing so could result in the conception of children using your genetic material after your passing.
Be sure to check back next week as we complete our two-part series on tough questions to consider when planning your estate. If you have any questions, please contact Godbe Law. We are always more than happy to discuss the specifics of estate planning with our clients to ensure all bases are covered and our clients can rest easy.