How to Use Your Estate Plan to Avoid Court Interference in Your Life

Authored by Wendy Witt, Esq.

If you don't have an up-to-date comprehensive estate plan, it's more likely than not that the court will be involved in your life and the lives of your loved ones. If given a choice, most folks wouldn't want court interference because it represents a tragic loss of control, causes family discord, subjects loved one to predators, costs money, and takes time.

Is Court Interference Really Bad?
It is good that courts are available to step in if needed; the courts and state law step in only if you don't act affirmatively and set forth your wishes in legal documents.

However, loss of control, family discord, enabling predators, needless court and lawyer expenses, and delays are generally thought to be bad.

Loss of Control: If you don't have an estate plan that works, the court or state law will dictate who takes care of your finances and health care decisions if you can't, who inherits your assets when you die, who manages your estate when you die, who raises your minor children, who's in charge of minor beneficiaries' inheritances, and the like.

This means that the court and state law dictate who's in charge when and who gets what -- not you.

Family Discord: If your wishes aren't made clear in legal documents, your loved ones will be left to guess what you would have wanted. In many cases, this means family discord will result, leading to lawsuits. Arguments and hurt feelings may affect family relationships for generations.

Many family feuds can be avoided with a comprehensive estate plan that provides instruction on how to carry out your wishes.

Predators: If your wishes aren't in private documents such as a revocable living trust, predators can go online and see what each beneficiary inherited and where they live. Shocking as it may be, phony financial advisors, ministers, charities, family members, and friends all have been found to prey on beneficiaries.

If your assets are funded into a revocable living trust, all inheritances are kept private and away from the prying eyes of predators and nosey neighbors.

Money: If the court is involved (and/or a family is in conflict) legal fees and costs rise exponentially.

You can keep fees to a minimum with a comprehensive estate plan that clearly sets forth your wishes and avoids probate and other forms of court interference.

Time: Any time the court is involved, you're on the court schedule and not your own. Court interference may delay you getting the help you need in a timely manner, your beneficiaries receiving their inheritances, the estate being closed, and your loved ones healing and moving on.

Look below for simple ways to keep the court out of your life and let your family move on in peace.

How to Use Your Estate Plan to Avoid Court (and State Law) Interference

Powers of Attorney: A power of attorney is a legal document that grants a trusted agent the authority to act on your behalf. The two most common powers of attorney are the general durable power of attorney and the medical/health care power of attorney.

To avoid court interference, be sure you have both of these powers of attorney documents and that they are in compliance with state law -- and have been executed within the last 3 to 5 years.

Living Will: If you don't want medical heroics such as life support machines if you are at the very end of life with no coming back, you need to execute a living will that instructs such.

To avoid a family fight and potential court interference (e.g. Terri Schiavo case), put your wishes in writing AND talk to your family and let them know how you feel.

Avoid Probate: If you don't own any assets in your individual name at your death, probate can be avoided. Probate is a court process used to transfer assets in your individual name to the names of your beneficiaries. Probate is court intensive, public, expensive, and takes a very long time sometimes, years.

You can avoid probate by working with an estate planning attorney to set up and fund a revocable living trust. There are other methods of avoiding probate, but they are riddled with pitfalls.

Use a Will or Trust to Distribute Assets: Our favorite way for most people to plan is the revocable living trust of course, you should consult with a qualified estate planning lawyer to determine whether providing for your beneficiaries in a will -- or in a trust -- is right for you. If you don't, state law will dictate who inherits what and you will have absolutely no control where your assets go.

You can determine who when and how someone receives an inheritance in a will or trust. Everyone age 18 or older needs his or her own will or trust or state law will determine the assets go.

Use a Will or Trust to Name Trusted Helpers: Your will is also used to name a personal representative (i.e. "executor") and a trust names a trustee. If you don't name trusted helpers, the court will step in and decide who takes care of your personal and financial business.

Use your will to name a personal representative and your trust to name trustees or the court chooses who acts in these roles and you may not like the court's decision.

Use a Will to Name Guardians: If you have minor children and want to control who cares for your children and who manages the assets you leave for your children if something should happen to you, you MUST document your wishes in a will.

If there is no will naming guardians, the court will determine who raises your children and who is in charge of the money they inherit. The court may not name the people you would want and if more than one relative or friend steps forward, there could be a court battle with resentments lasting for a lifetime or even worse if no one steps forward, your children will be placed into foster care.

Name Back Up Trusted Helpers: It's important to have powers of attorney, a will, a trust, and any other estate planning documents your estate planning attorney recommends; however, that's not enough.

You must name back up trusted helpers in case your primary named helpers are unable or unwilling to serve. For example, in your powers of attorney, you need back up agents; in your will you need back up personal representatives and guardians; and, in your trust, you need back up trustees.

If you don't have back up (i.e. contingent) trusted helpers named and your named helper cannot act when you need him or her, the court (or state law) will have to intervene to authorize someone to act on your behalf.

Make Sure Your Estate Planning Documents are Up to Date: If your estate planning documents are more than 3 to 5 years old or your life has had a significant change since you executed your current plan, your plan likely won't work and court and state law interference may be necessary.

We highly recommend that you have your current estate plan professionally reviewed to make sure it will do what you think it will do.

Make Sure Your Estate Planning Documents are Accessible: If your trusted helpers don't know that your estate planning documents exist or can't locate them, they are worthless. It's as if your documents don't exist and the court and state law will take over.

Let your trusted helpers know where you keep your important papers, including your estate planning documents and contact information for your estate planning attorney. In addition, consider using a virtual document storage service such as Docubank.

Waive the Bond Requirement: If you don't take affirmative action in your will or trust to waive the bond requirement, your personal representative or trustee may be required under state law to go to court to buy a bond that covers any errors they may make.

If after consultation with your estate planning lawyer, you wish to waive the bond requirement, as most people do, your trusted helper will have to go to court and purchase a bond. This takes time and money, costing your estate and family both.

Where to Get Help Keeping the Court Out of Your Life, Family, and Money
An estate planning attorney who has spoken with you, assessed your family and financial situation, and knows your goals, is the best person to gauge whether your estate plan will work do what you want it to do and keep the court out of your life, family, and money.

You are welcome to contact an estate planning lawyer through our free and private website, www.attorneys.org and when you do so, you're entitled to a free consultation. There is no obligation to hire that particular attorney. In fact, it's okay to chat with a few attorneys and hire whomever you feel most comfortable with. In addition, you could also get a list of attorneys from the bar association or through a friend.

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