Written by Gideon T.J. Alpert esq.
Oftentimes, when a person hears the term “Estate Planning,” there’s an overall perception that it’s something reserved only for the rich. Who in real life has an estate, anyways? The truth is, each of us needs an estate plan. Regardless of how much someone has accumulated in assets or income, it’s necessary to be proactive. The problem is, it’s definitely not a topic that’s sexy or glamorous to dig into. It can be downright depressing to dwell on these more morbid topics. But there is something invaluable that dealing with these plans sooner rather than later will bring: a sense of peace and calm, particularly when you have children who are minors. Taking care of even certain, basic protocols in a timely manner affords loved ones the time to grieve and take care of other necessary logistics following a loss, rather than being left an enormous additional and unexpected burden.
On this week’s Marriage and Martinis podcast episode, I speak about my own personal experience before becoming an estate lawyer, where I learned the hard way what can transpire for family members if basic estate planning documents are not in place and the unthinkable happens. As my father was aging, I tried to have discussions pertaining to his estate planning documents, as well as asking the whereabouts of his material assets and liabilities. He repeatedly assured me that everything was “taken care of.”
When he then fell in his home and became incapacitated by full dementia, which lasted the remainder of his life, it was only then that we discovered that he did not, in fact, have a financial Power of Attorney in place. As a result, we had no access to financial accounts in his own name, even though we had his health care and other bills to pay. We also lacked the absolutely necessary knowledge as to the location of certain assets and liabilities. The worst part was that it was too late to get this information from him. When we should have been spending time going through photo albums, reminiscing about nostalgic stories and memories, we instead were forced to spend countless hours of extra time sorting out his affairs. It was a frustrating and stressful process that could definitely have been avoided.
I knew that I wanted to help others avoid what my family had just endured. My legal practice consists of me advising my clients, gently yet productively, that without the proper basic estate documents in place and keeping their loved ones in the loop, they could leave their loved ones in very bad circumstances if something unexpected happens. There’s no doubt that this process seems scary and mysterious to so many, which is why it’s important to find a trustworthy estate planner who will guide their clients through the process of such key steps as: completing the necessary legal documents, making sure that loved ones are provided with such high level information as to what you want for your minor children, where they can find your vital documents and passwords, names of key contacts, location of material assets and liabilities, etc.
In this week’s podcast episode, Why We All Need An Estate Plan, we go through some important basics that everyone needs to know. I break it all down in a way that is hopefully palatable and less scary. I highly recommend listening to the episode (which is entertaining as well as very informative). Here is a general overview of some basic legal documents you’ll want to have in place.
WILL
A Will is a legal document that coordinates the distribution of your assets after death and allows you to communicate your wishes clearly and precisely as you name: (i) an executor, who carries out the provisions of your Will; and (ii) the beneficiaries, who inherit the assets that pass under your Will; as well as you leave instructions for how and when such beneficiaries inherit the assets.
Most importantly, for parent(s) with minor children, the Will is also the legal document where parent(s) name a legal Guardian for their kids if they both pass away (or if a single parent dies). A Guardian is entrusted with all the power and responsibility of a parent and will make important decisions about your child’s upbringing, schooling, religious training and medical treatment until your child becomes an adult. In NJ and NY, along with most states, this is age 18 years old.
If you don’t name a Guardian in a validly drafted and executed Will and you both die while the child/children are under age 18, the appointment of a Guardian falls to the courts in your state, who may or may not appoint who you would have named.
HEALTH CARE DIRECTIVE
One of the other basic estate planning documents that you should also have in place involves if you ever become incapacitated/disabled and can no longer make health related decisions on your own.
This document(s) allows you to appoint an authorized agent as your health care representative to speak with medical personnel and make medical decisions on your behalf if you are no longer able. In addition, you can provide direction to such representative, called a living will, where you can set forth that you want, for example, life sustaining treatments to be withheld or withdrawn if you end up having an incurable and irreversible injury, disease or illness, which must be confirmed by doctor(s) along with your incapacity.
If such health care document(s) are not in place, under health privacy laws, doctors cannot speak to anyone in connection with that adult person’s medical condition, including once a child becomes the age of 18 as they are deemed to be an adult in most states.
FINANCIAL POWER OF ATTORNEY
Everyone also should have a financial power of attorney (POA) in place, naming someone as your agent who, if you become incapacitated or disabled, has the authority to
access financial accounts in your own name, pay your bills, file your tax returns, and so on.
My hope, in this podcast episode, and in my practice, is to demystify these necessary steps, and help people to see that it is well worth working with a professional to ensure everything has been done. Estate planning may seem like a chore, but it is actually a gift. It’s a gift that will keep giving even after you’re gone, and those who are left to continue your legacy will be forever grateful that you took the time to tend to matters, so that instead of leaving it for them to deal with, they can just enjoy their life and spend their time reminiscing, rather than ruminating.
For more, listen to this week’s episode.
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