If you die without a will, here is the effect on your property:
- Your wishes regarding property distribution and care of your children are irrelevant.
- Your property will be distributed to your heirs at law according to state law. This may result in your property going to someone you would have chosen to disinherit or to a person who would be better served by a gift in trust than an outright gift (for example, an incapacitated person who cannot manage large sums of money or property).
- The process of settling your estate may be more expensive and complicated than with a properly drafted will and more stressful for your loved ones.
- You lose the ability to dispose of your property in ways that may minimize tax liabilities.
If you die without a will, here is the effect on your children:
- In the event that you and the other parent of your children both pass away, a judge will appoint a guardian for your children according to a state law formula. This may not reflect your wishes for who you would choose to raise your children.
- The court may require the court-appointed guardian to post bond.
- The guardianship process is cumbersome and expensive, imposing an additional burden on your loved ones.
Suppose instead that you don’t die but instead become incapacitated and unable to handle your affairs or make your own care decisions...
If you don’t have a durable power of attorney:
- A guardian may need to be appointed to handle your financial affairs for you until you regain capacity. Guardianship of the estate is a cumbersome, expensive process which requires annual accounting by the guardian.
- Until a guardian is appointed your loved ones may not be able to access your assets to, for example, pay for your care, break a lease, or sell your home.
If you don’t have a medical power of attorney:
- A guardian of the person may need to be appointed to make your medical decisions for you. The guardianship process is expensive.
- In the meantime, your loved ones may not have the ability to make decisions on your behalf or receive detailed information about your condition.
As you can see, anticipating and preparing for death and incapacity is much easier and more efficiently done by you through a well-drafted estate plan before the need arises than by your family after the fact. Keep in mind too that when the need arises, it will likely already be a very difficult and emotional time for your loved ones without the added stress of legal proceedings. A well-drafted estate plan gives you peace of mind today and saves your loved ones time, money, and stress later.