My wonderfully exocentric and very wealthy uncle once told me of his excitement at the prospect of videotaping his last will and testament so he could once again prove to family members how his money could be used to control them. He seemed happy and rather giddy about getting his affairs in order and looked forward to the drama associated with his recording his last wishes.
Most people are not nearly as excited about planning for their incapacity or death as my uncle. In fact, most human beings have a tendency to hope for the best and assume that everything will be taken care of in due course. We do not like to think of dying or losing control. Instead, we comfort ourselves with thoughts that those things will be taken care of by the ones we love. We know that they will know what to do, although we might have never given them any sort of instruction or guidance on what we might have wanted. Leaving decisions that affect our health and finances and distribution of our wealth to family members can cause them great frustration, confusion and a financial drain as they work within a complex legal system to handle what they perceive to be their loved one’s wishes. These problems can be avoided with proper estate planning.
“Estate planning” can mean a wide variety of things; however, as used by the legal profession, it means making arrangements for the handling of a client’s personal and financial affairs. In the not-too-distant past, estate planning focused solely on the administration and distribution of the individual’s financial estate, through the preparation of Will (or simple) Trust. During the last decade, however, an individual’s personal wishes are incorporated into the estate planning process. Individuals are taking into consideration their current state of health, their preference for their last days, that is, their “dying wishes” and even the disposition of their body at death. These very personal decisions are becoming an important part of the decision-making.
Also, the scope of estate planning has expanded from dealing primarily with the administration and disposition of the client’s affairs at his or her death to addressing the client’s anticipated financial needs during their lifetime due to a disability, and the needs of his or her family during the years or generations after his/her death.
Statistically, there is a 58% probability that you will suffer a disability of 90 days or more during your life. It is certain you will die. Failing to plan commonly results in the imposition of default “remedies,” such as guardianships, conservatorships, and intestate succession. These default remedies are created by state statute. So if you do not plan, the State of Missouri will plan for you. Many times, the default remedies will not produce the results you would have chosen. The AARP reports that only 60% of people over age 50 have wills, 45% of these people have durable powers of attorney, 30% of these people have advance medical directives, and only 23% have living trusts. These statistics show that most people fail to make a comprehensive estate plan. And of those who have completed their estate plans, the odds are that they haven’t reviewed their plans in years.
If you do not plan, someone else will decide the following issues for you:
- Your health care decisions, including whether medical treatment will be continued should you become incapacited;
- Where you will live if you are incapacitated;
- The type of care you will receive if you are not able to speak for yourself;
- How your nursing home charges will be paid;
- How your assets will be managed and controlled;
- Where your property will go when you pass away;
- How your beneficiaries (who may be disabled) will be cared for when you no longer can provide care; and
- How your body will be disposed of when you die;
While you may feel family members are perfectly equipped to handle these issues, if you do not give them the legal authority to handle them on your behalf, they will have to ask a Court for the authority. You have now placed your affairs with a judge who may or may not see things the way you would have seen them. Hoping and assuming all will turn out as you would have wanted is a scary proposition when speaking of one’s health and finances.
Estate planning puts you back in control and in charge of your life.
By: Christine A. Alsop
Oelbaum, Brown & Alsop, LLC
220 West Lockwood
Webster Groves, Missouri 63119
Telephone: (314) 962-0186
Fax: (314) 962-1298