It’s easy to avoid putting an estate plan in place. We tell ourselves things, such “I won’t care because I’ll be dead,” “I’m too young,” “That won’t happen to me, or “My family will know what to do.” I know that I made those same rationalizations to myself.
I wasn’t educated about estate planning or the consequences to my family if I failed to plan. Once I became educated about the realities of the failure to plan, I realized that I needed to plan. I suspect that many of you are also similiarly uneducated. First, you must understand that the planning you do is not for you, but for those that you love.
To ensure that you have a plan in place that will work when you need it, you need to understand what happens if you don’t have a plan. While every situation is unique, I discuss below the various issues that can arise without a plan.
Your Family Will Have to Go to Court
If you don’t have a plan, or just a will, you are forcing your family into probate upon your death. Probate is the legal process of transferring the title of property from the decedent (you) to your family. In other words, probate uses the court system to transfer title of the property. Probate can be an expensive and time-consuming process with a will; without a will, the probate process can be a nightmare for your family.
Depending on the complexity of your estate, probate can take months, possibly years, to complete. New Mexico courts, particularly the district court in Albuquerque, has a high case load. The court process is expensive. In fact, once your estate pays all of your debts, taxes and court fees, the heirs may not inherit anything. Heirs may argue over any assets that remain, causing additional conflict and court costs.
In general, most people find the court process frustrating and stressful. When your loved ones are grieving your loss, planning your funeral and trying to reach those close to you, the probate process can be overwhelming. Calling a lawyer and navigating the court system is the last thing they want to do. Additionally, the court process can lead to conflict among family members.
We can help you design a plan that can almost totally avoid the expense and drama of the court system. For example, if you put a trust into place, the assets will pass directly to your family upon your death, without the need for any court intervention. As long as the trust or plan has been done properly, just about everything can happen in the privacy of our office and on your family’s time.
You Have No Control Over Who Inherits Your Assets
If you fail to plan, the court decides who inherits your assets. This can lead to all sorts of problem. Spouses and kids are first to receive the assets. However, if you are single and do not have children, then your parents and/or siblings will inherit. If there are no spouses, children, parents or siblings, then the court will distribute the assets to more distant relatives. If no living relatives can be located, your assets will go to the state.
Moreover, New Mexico state law does not even consider distributing assets to those who are not related by blood. So, if you want to leave assets to someone you are not married to, an estate plan is a must.
If you’re married with children and die with no plan, things could go smoothly. However, that’s not always the case. If you have children from a previous relationship, the court could give everything to your current spouse. Your children from a prior relationship would be left out. In another instance, you might be estranged from your kids or not trust them with money, but without a plan, state law controls who gets your assets, not you.
In addition, dying without a plan could cause an ugly court battle over who has the rights to your property. Or if you become incapacitated, your loved ones may become divided over how to handle your financial and health matters. The best way to avoid conflict is to prepare a plan before your death.
We can help you create a plan that handles your assets and your care in the exact manner you wish, taking into account all of your family dynamics, so your death or incapacity won’t be any more painful or expensive for your family than it needs to be.
You Have No Control Over Your Medical, Financial or Legal Decisions in the Event of Your Incapacity
Most people assume estate planning only comes into play when they die, but that’s dead wrong. Yes, pun intended.
Planning for your eventual death is a big part of the process. However, it’s just as important—if not even more—to plan for your potential incapacity. If you become incapacitated without a plan in place, a judge would have the final say over who to appoint as a guardian or conservator of your affairs. This process can be extremely costly, time consuming, and traumatic for everyone involved. In fact, incapacity can be a much greater burden for your loved ones than your death.
We can help you put a plan in place that will grant the person(s) of your choice the immediate authority to make your medical, financial, and legal decisions for you in the event of your incapacity. We can also implement planning strategies that provide specific guidelines detailing how you want your medical care to be managed, including critical end-of-life decisions.
You Have No Control Over Who Will Raise Your Children
If you’re the parent of minor children, the most devastating consequence of having no estate plan is what could happen to your kids in the event of your death or incapacity. If you do not name legal guardians in an estate plan, a judge will decide who cares for your children. And this could cause major heartbreak not only for your children, but for your entire family.
A judge does not know your family and will make a decision on the evidence provided. Therefore a judge will not necessarily make the decision you would want. Indeed, the judge could pick someone from your family you’d never want to raise them to adulthood. And if you don’t have any family, or the family you do have is deemed unfit, the court could place your children with total strangers.
What’s more, if you have several relatives who want to care for your kids, they could end up fighting one another in court over who gets custody. This can be an expensive process and divide families. The children, who should be protected at this vulnerable time, are then stuck in the middle.
If you have minor children, you should name legal guardians to care for your children if anything should happen to you. This is so critical, we’ve developed a comprehensive system called the Kids Protection Plan® that guides you step-by-step through the process of creating the legal documents naming these guardians.
A judge is always required to finalize the naming of guardians. Therefore, the family will still need to go to court if something happens to you. However, it’s important you that give the judge clear direction to protect your children. You should also take action to keep your kids out of the care of strangers in the short-term, if your long term guardians are not immediately available. We handle that in a Kids Protection Plan® too.
You can get started with this process right now for free by visiting our user-friendly website: https://albuquerque.kidsprotectionplan.com/
No More Excuses
You can’t afford to put off creating your estate plan any longer. The consequences are to high. As your lawyer, we’ll guide you step-by-step through the planning process to ensure you’ve taken all the proper precautions to spare your loved ones from needless frustration, conflict, and expense.
Once you put a plan into place, you will gain peace of mind knowing that your loved ones will be provided and cared for if something happens to you. You can call our office at 505-373-3319 or click on our scheduling link to set up a session.