Pumpkin Kisses and Harvest Wishes

October brings fall, pumpkin-spiced everything, and the macabre. As October fades into November, we put away our ghosts, skeletons, and witches and pull out our leaves, turkeys, and cornucopias. I’ve always appreciated the transition from the ghoulish to the gracious. This fall, I encourage everyone to make this same transition in our personal lives. Go from something truly terrifying, dying without an Estate Plan, to something wickedly wise, creating a comprehensive Estate Plan.

Although everyone knows that they should treat their family to a comprehensive Estate Plan, many folks experience feelings of superstition and dread when considering planning for the end of their life, as if by planning for death, they invite it. The chilling truth is that most of us have no idea how much time we have and when we will depart our mortal coil. Accidents happen, and an alarmingly high number of people die without an Estate Plan, which can have disastrous results for our families and loved ones. The excuses for failing to create a plan run the gamut, from being young, childless, or unmarried to refusing to face mortality. Many people believe that if their assets do not exceed a certain amount, then they needn’t worry about an Estate Plan. Whatever the reason, failing to create an Estate Plan causes chaos at your death. Inevitably, your loved ones will need to attend to your legal affairs such as paying your debts and transferring your assets, and, without a clear set of instructions that a comprehensive Estate Plan provides, you are leaving a mess for those grieving your demise.

If you die without a Will or Revocable Trust, that’s called dying intestate. It’s so common that states have created statutes to address the issue of intestacy. Wills and Revocable Trusts address numerous issues such as who will care for minor children or pets, the timing and distribution of assets, who will oversee distribution of those assets, and payment of taxes. If you die without an Estate Plan, state statutes fill in the gaps and determine distribution of your assets without any input from you or your loved ones. Many states’ intestacy laws give only a portion of assets to the surviving spouse and make no provisions for anyone to whom you were not legally bound. Those same statutes give the remainder to descendants, without regard for the needs of individual recipients, often leaving these individuals in the lurch because of their special circumstances, such as receipt of government benefits.

If you die intestate, then it’s likely your estate will need to go through probate. An individual petitions the court for appointment as executor, personal representative, or administrator, which gives that individual legal authority to collect and distribute your assets. That individual likely needs to retain an attorney to understand and navigate the complex court system. A judge oversees the many steps involved in this public process. The judge issues Letters of Administration or similar documents that give the executor power to marshal the assets of your estate. If your family disagrees about who should serve in that capacity, then the judge decides and might appoint a total stranger. Usually, statutes entitle the executor to take a commission or fee as compensation for their services. Imagine, a stranger and the public knowing your personal business and paying that stranger out of money you wanted to leave to your family. There’s something incredibly unsettling about that.

The treat in this tale of woe is that you control your destiny, at least with respect to your Estate Plan. By contacting an attorney, you can accomplish your goals and keep your estate out of probate with an Estate Plan that includes a Revocable Trust, Will, Property Power of Attorney, Health Care Power of Attorney, Living Will, and Health Insurance Portability and Accountability Act Authorization, all while preserving your legacy. Most people feel relief and well-being upon executing their Estate Plan. Creating an Estate Plan allows you to determine who will care for your minor children, who will distribute your assets, how they will distribute those assets, and when they will distribute the assets, be it to individuals, charities, schools, or museums. A comprehensive Estate Plan prevents disputes among beneficiaries and provides tax planning opportunities. Working with a qualified trusts and estates practitioner allows you to control what happens to your children, your pets, and your property after your death.

Dying without a Will can haunt your family years after your demise. If this ghoulish endeavor gives you the chills, remember your why, the gratitude of your family after your death for the detailed instructions regarding your last wishes. Financial trouble, delayed distribution of assets, and stress are just a few of the frightening things in store for your loved ones if you die intestate. Most individuals find the probate process torturous; however, you can circumvent it. Avoid the tragedy of intestacy by creating a set of instructions regarding what you want to happen when you die, otherwise known as an Estate Plan. Take the fright out of dying intestate by contacting an Estate Planning attorney so that you, too, transition from the creepy to the gracious by addressing the inevitable.

Tereina Stidd, J.D. LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com