A will is a legal document that outlines your wishes regarding the distribution of your assets and the appointment of someone to oversee this process. Individuals named in a will to receive your assets are referred to as heirs or beneficiaries, while the person responsible for executing the instructions in the will is called a personal representative or executor. It’s essential to understand that wills do not apply to assets with surviving joint owners or living beneficiaries. For instance, assets like retirement accounts and life insurance are directly payable to the designated living beneficiary, regardless of what the will specifies. Therefore, it is crucial to ensure that your will aligns with jointly owned assets and accounts with named beneficiaries to ensure a cohesive and comprehensive estate plan.
Furthermore, any property passing under a will must undergo probate, a legal process where the will is filed with a probate court, reviewed, and approved. Only after this process can the personal representative act on your behalf, manage your assets, settle outstanding debts, and distribute the remaining assets to your heirs. Contrary to a common misconception, a will is not a magical solution covering every estate planning scenario. While it is a critical component of estate planning, it is important to acknowledge that a will must go through probate before becoming effective. Understanding this process is essential to ensure that your estate planning documents function cohesively and in accordance with your intentions.
Certainly, having just a will may not be sufficient for comprehensive estate planning. While a will addresses the distribution of assets, there are other crucial aspects to consider:
1. Incapacity or Disability: What if you are unable to make decisions for yourself? Estate planning covers scenarios where you might be incapacitated or disabled.
2. Asset and Medical Decision-Making: It’s essential to designate someone to manage your assets and make medical decisions on your behalf. This involves having a Power of Attorney for financial matters and healthcare decisions.
3. Guardianship of Minor Children: For parents of minors, it’s important to plan for short-term emergency situations and long-term guardianship. Determining who cares for your children during such times and who would raise them in the event of unforeseen circumstances is a critical part of estate planning. To adequately address these concerns, you need more than just a will:
• Power of Attorney: Designate someone to handle your financial and medical affairs in case you are unable to do so.
• Living Will: Clearly outline your preferences for end-of-life decisions, especially if you are on life support.
• HIPAA Release: Authorize specific individuals to communicate with your doctors about your medical condition. Whether you also need a trust is a separate consideration, but it’s clear that a will alone may not cover all your estate planning needs. For parents of minors, additional elements may be crucial:
• Short-Term and Long-Term Guardianship: Plan for both emergency situations and the long-term care of your children.
• Emergency Wallet Cards: Ensure that key information about your estate plan is immediately available in case of an emergency.
• Letters to Children and Guardians: Provide guidance and important information through letters, ensuring that your wishes, values, and stories are known and passed down. Supplementing your will with these components helps ensure that your estate plan is comprehensive and aligns with your wishes, values, and intentions for the well-being of both your assets and your loved ones.
In the absence of a will, the distribution of your estate is governed by state law, which steps in to address the gaps left by the absence of specific directives. State laws typically follow a predetermined hierarchy in determining heirs and beneficiaries, with a
surviving spouse taking precedence, followed by children, parents, and then extended family members such as siblings, nieces, and nephews. However, complications can arise, particularly in blended families or situations where there are children from different relationships. The distribution becomes more intricate, and it doesn’t necessarily adhere to straightforward equal shares. In cases like these, the default provisions under Colorado law may not align with your preferences.
Moreover, state law does not provide clarity regarding the management of assets left to a minor or an incapacitated beneficiary. While it outlines the family tree, it lacks the specificity needed to ensure that your estate is distributed as you would have intended, potentially at specific ages or in a manner reflecting your wishes. Even though state law steps in to fill these gaps, it is crucial to recognize that it might not fully capture your preferences. To avoid uncertainties and ensure your wishes are honored, it is imperative to have a well-documented plan in writing. This proactive approach helps prevent reliance on state law and allows you to articulate your preferences regarding asset distribution and the management of assets for minors or incapacitated beneficiaries.
Probate is a court system integral to the estate planning process, and the common goal often mentioned is to minimize or avoid it. In essence, probate is a state-specific court procedure responsible for appointing an individual to oversee the distribution of an estate when someone passes away. This court system ensures that the assets are transferred to the legally entitled heirs. Additionally, probate serves as the legal avenue to designate someone, chosen by a judge, to manage the assets and make medical decisions for a minor child or an incapacitated adult. Essentially, probate court acts as a default plan for those who have not engaged in estate planning to sidestep its proceedings. When individuals haven’t proactively planned to avoid probate, the responsibility falls on the probate judge to determine who takes charge of financial matters in case of incapacity, who becomes the guardian of minor children in the absence of a designated plan, and who manages the entire process of gathering, inventorying, paying creditors, and ultimately distributing the estate to heirs. Probate involves a formal court proceeding, assigning a case number to the process. As with any legal proceedings, records are public, and a judge makes decisions throughout the probate process.
While probate is not an unavoidable aspect of estate planning, it becomes necessary when planning is inadequate or absent. Effective estate planning, which includes comprehensive documentation of your wishes, can help you steer clear of probate or, at the very least, streamline the process. Whether through meticulous self-prepared plans or seeking professional assistance, a well-crafted estate plan aims to minimize reliance on probate, ensuring your wishes are carried out efficiently and as intended.
A trust can be thought of as a substitute for a will in estate planning. Much like a will, it outlines who receives what and under what circumstances, as well as who is responsible for implementing these provisions. However, a crucial distinction lies in how these documents are processed. A will must be filed with a probate court, subject to review and approval before anyone can take action or inherit assets from your estate. As everything filed in probate court becomes public record, the process can be time-consuming.
Conversely, a trust is a completely private document. Only those named in the trust have the right to access it, and the successor trustee designated in your trust can act promptly without the need for court involvement, filings, or permissions. Thus, a trust offers a more immediate and efficient means of managing an individual’s affairs upon their passing compared to a will, which becomes a public document once filed with the court, requiring court review and approval before any action can be taken.
While wills and trusts share similar goals, their processes diverge when action is required. A trust provides efficiency and privacy, while a will involves a longer, public process. We don’t adhere to the notion that trusts are exclusively for the wealthy or those with a specific net worth. Instead, we empower our clients to make informed decisions based on their unique needs. Whether a will or a trust is more suitable is not determined by financial status but by the desire to navigate the quality of the experience your family undergoes.
Understanding the intricacies of wills and trusts, including the probate court’s role and the steps involved, helps our clients determine the most fitting option for their situation. Our approach is client-centric, ensuring that individuals are well informed about the differences between wills and trusts, allowing them to make choices aligned with what is best for their families. We refrain from making judgment calls based on asset evaluations, emphasizing that the decision is ultimately in the hands of our clients. Our commitment is to educate and empower, enabling individuals to choose the path that aligns with their preferences and family dynamics.
Let’s walk through what you can expect from the moment you reach out to our office until your initial appointment. When you contact us, our client services director will assist you by answering your inquiries, scheduling your appointment, and sending you a welcome email. This email provides additional details about our team, our backgrounds, our unique focus on helping you leave a meaningful legacy, and includes a brief video to welcome you to our firm. Between receiving the welcome email and your scheduled appointment, we’ll ask you to share some information about yourself. You’ll complete a secure online form called your family profile, enabling us to learn more about you in advance. I will review this information to ensure I am fully prepared for your meeting. This preparation allows us to address your questions about your estate plan and provide clarity on the associated fees during your initial appointment.
During the meeting, we engage in a conversation where you can ask questions, and we, in turn, will inquire about your preferences for your estate plan. We discuss what your plan could encompass, providing you with a comprehensive understanding of the proposed fee. At this point, you have the opportunity to decide whether to proceed—most individuals choose to move forward, desiring the peace of mind that comes with protecting their family. Half of the fee is paid at this initial appointment, with the balance due at the signing session, which takes place about a month later. Following the signing, we schedule a third meeting during the planning phase, where we shift our focus to the legacy component. This includes discussions about letters you may write to your children, their guardian, and the trustee, outlining your financial values and ensuring that your wishes are clearly communicated. As an optional but highly valued aspect, we offer the opportunity to create a legacy video during this final meeting. This video allows you to express your insights, values, stories, and experiences, providing a lasting testament to your legacy. You have the creative freedom to decide what your legacy video will encompass.
In summary, this overview outlines the process from your first contact with our office to the subsequent appointments. We look forward to the possibility of meeting you soon and guiding you through this important process.
There are two prevalent myths that often arise in discussions about estate planning. The first misconception is the belief that a will addresses all aspects of estate planning, providing comprehensive coverage. However, this is not accurate. A will does
not account for situations of incapacity or disability, and it must go through the probate court process to become effective. Contrary to the misconception, the probate court must receive and approve the will, initiating a legal process.
The second myth involves the assumption that if an individual is incapacitated or disabled and married, their spouse can automatically act on their behalf. This is a misconception, as even marital status does not grant automatic decision-making authority. In such cases, the spouse must go to the probate court, similar to any other individual, to obtain permission from the probate judge for medical and financial decisions. It is crucial not to rely solely on marital status or a will to address all estate planning concerns.
For further insights, you can explore our FAQs on “What’s a Will” and “Should I Avoid Probate” Now, let’s consider a scenario where you’ve completed your estate plan in Colorado, Texas, or New Mexico, and later you decide to move. What happens to your estate plan? The good news is that the documents signed with notaries and witnesses remain valid across any state in the United States. You can travel or relocate, relying on these documents to serve your needs. However, it’s essential to recognize that states have varying laws, potentially leading to differences in how your intentions are carried out under the new state’s legal framework. To address this, when you move, it’s advisable to consult with an attorney in the new state. They can review the existing estate plan, retain elements that remain relevant, and make any necessary updates to align with the nuances of the new state’s laws. Life changes, such as moving or other significant events, may necessitate adjustments to keep your estate plan current and
reflective of your evolving circumstances. If you remain in your current location, we are here to assist you in maintaining an up-to-date plan. If you decide to move, we can help you connect with an attorney in your new state who shares our philosophy and approach to estate planning, ensuring a seamless transition and alignment with your preferences. While your existing documents remain valid, a review with a local attorney is recommended to address any jurisdiction-specific considerations.
An estate plan is a comprehensive strategy that goes beyond simply determining who inherits what. While asset distribution is a crucial aspect, estate planning also addresses contingencies related to incapacity and disability. This includes outlining who will handle your financial affairs and make medical decisions on your behalf if you become unable to do so.
Additionally, an estate plan encompasses provisions for guardianship, addressing both short-term emergency care and long-term guardianship for minor children. Whether utilizing a will or trust, an estate plan is designed to cover various facets of your life. It extends from addressing immediate concerns like incapacity to planning for the long-term, such as the management of assets for a minor child until they reach maturity.
The choice between a will and a trust is explored further in our FAQs on these topics. Importantly, estate planning is not solely about legal documents. While well- drafted legal documents are essential, the plan also considers the legacy component. Your family’s memories of you are shaped not just by legal papers but by personal artifacts like videos, letters, audio recordings, and photographs. Acknowledging this, we believe that the legacy component is as significant as the legal documentation itself. Therefore, an estate plan aims to cover a spectrum of aspects, from practical matters during your lifetime to ensuring a meaningful and lasting legacy for your loved ones.
A Living Will is distinct from a Last Will, often causing confusion due to their similar names. While a Last Will outlines asset distribution after your passing, a Living Will is relevant while you are still alive. This legal document comes into play when you are terminally and irreversibly ill or injured, unable to communicate, and reliant on life support. In essence, a Living Will serves to clarify your preferences regarding the duration of time on life support in such circumstances. You determine, in advance, the specific number of days—whether three, five, seven, or a duration of your choice—after which you wish to be taken off life support if there is no improvement in your condition.
By documenting your decision in a Living Will, you proactively address a challenging situation for your family. In the event that they find themselves grappling with the decision of when to discontinue life support, your Living Will serves as a clear guide. This preemptive approach helps prevent potential conflicts among family members who may hold different views on what the individual would have wanted. The advantage of a Living Will lies in the fact that, by considering and documenting your preferences in advance, you eliminate ambiguity and potential disagreements. Whether it’s three days, five days, or another specified period, the key is that your decision is thoughtfully deliberated, put into writing, and communicated to your family, ensuring that your wishes are respected during a challenging and emotionally charged time.
We strongly advise against naming minor children as beneficiaries of any asset, including life insurance policies or retirement accounts. The primary concern is that if you, as the asset owner, were to pass away, and the proceeds are payable to a minor child, legal complexities arise. While the minor child becomes the legal owner, they are unable to manage the asset independently due to their age. In such cases, a court intervention becomes necessary, with the court appointing someone to oversee the asset until the child reaches the age of 18 or, in some instances, 21. By allowing the court to decide, you relinquish control over who will be responsible for the asset and the decisions regarding its management.
However, as part of your estate plan, you have the opportunity to proactively make this choice in advance, avoiding reliance on a court’s decision. By naming a minor child outright as a beneficiary, you leave critical decisions about asset management and fund utilization to chance. If something were to happen before the child reaches
adulthood, a probate judge or a stranger could end up deciding these matters. In the absence of clear provisions, significant amounts, such as those from a substantial life insurance policy, may be handed over to a young adult without adequate oversight. In instances where a substantial sum is involved, like a one-million-dollar life insurance policy, an 18- or 21-year-old receiving such funds without mature guidance can pose risks. It’s crucial to anticipate potential misuse and ensure that the funds are preserved for significant life milestones, such as weddings, home purchases, or education. Therefore, it is highly recommended to avoid naming minor children as beneficiaries
and, instead, incorporate thoughtful provisions into your estate plan to safeguard the financial well-being of your children in the event of unforeseen circumstances.
The decision to avoid probate is highly individualized and depends on your specific circumstances. Our approach is not to prescribe avoidance of probate for everyone but rather to provide comprehensive education on what probate entails, how it can be avoided, and empower you, as the client, to make informed decisions. Probate, being a court proceeding, renders everything filed in court as public record. This means details about your heirs and their inheritances, which were previously private, become publicly accessible after your passing. If maintaining privacy is a priority, this could be a compelling reason to consider avoiding probate. Additionally, the court system inherently introduces delays, making the process longer compared to more immediate alternatives. If ensuring that your family can act promptly and efficiently is important to you, steering clear of probate might be a favorable choice.
Contrary to common belief, having a will does not automatically bypass probate. A will must undergo court filing before it becomes legally effective and someone can act on your or your estate’s behalf. If avoiding the public nature and potential delays associated with probate is a priority, incorporating a living trust into your plan is
recommended.
Our FAQs provide additional insights into the distinctions between a living trust and a will. If you determine that the court system is not the ideal avenue for your family, opting to avoid probate can be a strategic component of your overall estate plan. We encourage you to explore these options and make choices aligned with your priorities and preferences.
The standard timeframe for the entire estate planning process typically spans six to eight weeks. However, we do offer expedited services, especially if you have imminent international travel plans or are expecting a new addition to your family. To commence the process, we recommend attending a complimentary educational estate planning talk where you can gain insights into the key considerations in a group setting, presented in an engaging manner. Following the educational session, your first appointment will be scheduled. During this meeting, you’ll have the opportunity to meet
with your attorney, ask questions, and engage in a discussion. Subsequently, you can decide whether to proceed with your estate plan. Most individuals choose to move forward, seeking the peace of mind that comes with protecting their family. At this meeting, the exact fee will be determined, with a payment of half required.
Approximately a month later, you’ll return for the signing session, where you’ll execute all the legally prepared documents, finalizing your estate plan. The remaining balance of the fee is settled at the signing. The third meeting, known as the legacy meeting, focuses on capturing your insights, values, stories, and experiences. We assist you in drafting letters to your children, their guardian, or your trustee, as well as outlining your medical decisions. Additionally, this meeting offers an opportunity to create a legacy video, the first of many we hope you’ll produce over time. The entire process, from start
to finish, spans six to eight weeks, although we are flexible and can expedite as needed to meet specific timelines. We anticipate meeting you and guiding you through this comprehensive and valuable process.
The cost of an estate plan can vary among attorneys, and it’s essential to consider the quality of the service provided. Opting for a do-it-yourself online approach with a minimal $20 investment may result in an estate plan that lacks thoroughness, potentially causing complications for your family in the future. It’s advisable to seek an
attorney capable of crafting excellent legal documents that align with state laws, addressing how your assets are distributed, under what circumstances, and determining who assumes responsibility. Equally crucial is finding an attorney who values an ongoing relationship, staying in touch as life evolves and ensuring your estate plan remains current. When seeking an attorney, it’s beneficial to choose one who offers a flat fee structure rather than hourly rates. Flat fees agreed upon in advance provide clarity about the costs involved.
At Wills and Wellness, we offer two main estate plan packages: the Will Plan starting at $2,000 and the Trust Plan starting at $3,500. While it may be tempting to compare fees, it’s crucial to ensure that attorneys charging less are offering comprehensive services comparable to those charging more. At Wills and Wellness, we
believe an estate plan extends beyond legal documents. It involves ensuring that your family is aware of the plan’s existence and location. Additionally, we emphasize the importance of the legacy component, capturing who you are as a parent and individual through values, insights, stories, and experiences. To preserve these aspects, we incorporate a legacy video and letters into our plans, recognizing that legal documents alone may not fully convey your identity. We are happy to discuss our fee schedule in more detail and address any questions you may have. Feel free to contact us for further information, or consider attending our free talks and webinars where we delve into our fee structure and the estate planning process.
