What Is Estate Planning?
Estate and legacy planning is a comprehensive process of providing for the care you want if you ever become incapacitated and providing for your loved ones if you were to die. Failing to plan can devastate a family. Proper planning involves more than “this document” or “that document,” but rather is a combination of the right documents working in concert with your actual assets and values, hopefully supported by professionals who are acquainted with you and are prepared to support your family in a time of trouble.
We believe that estate planning is one of the most important things that you can do for your family. Unfortunately, many people either put off estate planning until it’s too late, or they create a will and then think they have everything covered. In our law practice, we frequently deal with the results of well-intentioned people who have tried to do their estate planning themselves or they have had a simple will made by a lawyer, believing they have it covered. Here are some of the avoidable things we have seen:
- Frustrating delays from probate proceedings
- Unintended beneficiaries of assets
- Gifts to minors requiring court appointment of a conservator
- Estate disputes arising from ambiguous and poorly written will or trust provisions
- Executors having to post unnecessary bonds
- Leaving assets to minors or special needs individuals, creating the need for court supervision or loss of benefits
- Improper execution causing a will to be invalid
- Estate tax liability
- Small business being left in flux
- Over-exposure of assets to creditors
- Co-executors who can’t work together
- Making gifts that disqualify them from having Medicaid assist with nursing care
- Failing to plan for incapacity, resulting in kids fighting over will be guardian over their parent
- Leaving assets to children with creditors who attach liens to inherited assets
- An ex-spouse being the beneficiary of a P.O.D. account
- Not having a trusted attorney to help their family when they need it
Estate planning, if done right, seeks to eliminate the above risks. Many people with insufficient planning would have loved to have avoided the problems raised above, but they just didn’t realize the value of engaging experienced attorneys to help them plan their life and legacy. We hope to change that!
How We Handle Estate Planning for Our Clients
Every situation is different, and you deserve something more than a cookie-cutter approach to your personal business. That is why our estate planning attorneys, Daniel J. O’Connor and Rizza O’Connor, start their planning off with a Planning Session. A Planning Session is an educational session for you (and, if married, your spouse) that turns into a working meeting if you decide to engage us to create an estate plan.
Before the meeting, you complete homework that we provide which helps you inventory your assets and identify important priorities. If you complete the homework, the Planning Session, which is normally $750.00, is free. At the meeting, we learn about your family and priorities, and you learn about what would happen if you became incapacitated or died. We also educate you about how our plans can make your priorities a reality. If you see the value in a plan we offer and if we are a good fit to work together, you will engage us, and we will start working together.
One thing that distinguishes us from most other firms is our three-meeting process. We begin with the Planning Session, and if necessary we follow up with another planning meeting to cover any details that weren’t covered in the meeting. The second main meeting is the Signing Ceremony, in which you execute the documents that make up your plan, and we start discussing how to “fund” your assets in a way that maximizes the benefits of your plan. The third meeting is binder delivery, at which we deliver your executed plan and discuss any additional steps you might take.
Beginning in 2023 we are also offering optional maintenance plans on a subscription basis so that we can review your plan every year and keep your plan and asset inventory up to date.
Do I Need A Will Or Trust?
Not so fast! There is not a one-size-fits-all answer, and we won’t pretend to know what your family needs until we meet with you and get clear on your goals. Instead of focusing on what document you need, we focus on the outcome you want.
A common mistake of both clients and attorneys is picking an estate planning documents before fully evaluating the desired outcome. What’s more important: the document or the outcome? After you have educated us on your family and priorities, and we have educated you on your options, you will have the clarity to pick one of several plan options that we offer. All of our plans include multiple documents working together because no single document will do everything you need on its own
Critical Estate Planning Instruments
Although we prefer to focus on outcomes rather than the ingredient documents, the following documents are included in most of our plans:
General Power Of Attorney
A general power of attorney (POA) gives someone the authority to make financial and related decisions regarding your affairs while you are alive.
Georgia’s advance directive is a combination of a “living will” and a health care power of attorney. In short, you appoint a health care agent to make decisions regarding your health care in the event that you are one day unable or unwilling to make health care decisions for yourself. You can designate your treatment preferences as well as identify your preferences for the final disposition of your body after death. You also have an opportunity in an advance directive to nominate a guardian for yourself in the event that a court ever determines that one is necessary.
Last Will And Testament
Almost everyone needs at least a will. A will, properly drafted and attested, designates the means by which any property you may own at the time of your death will pass to your loved ones and who will be your personal representative. Without a will or a fully funded revocable living trust, the distribution of your estate to your heirs will be subject to Georgia’s laws of intestate succession. The process of probating your estate will be according to state law.
It is particularly important that parents of young children have a will. Minors (children under the age of 18) lack the legal competence necessary to exercise the benefits of ownership of property, and leaving property to minors could lead to hardships for the people you leave behind if you fail to create the proper provisions in your estate plan. You may also nominate who would be guardians for your children in the event that both you and their other parent die before they reach the age of 18.
There are downsides to relying solely on a will-based plan, as opposed to a living trust plan. Any property that you own in your personal name at the time of your death, with some exceptions, must go through a process known as “probate” before your heirs or beneficiaries receive it. Sometimes probate is necessary, but many people want to avoid it once they have been educated on the subject and learn that taking certain steps means their estate doesn’t have to be subjected to a public court process. Even so, a will-based plan is usually better than no plan at all because the process for probating a will is a little easier than administering an intestate estate.
Revocable Living Trust
The idea of holding your property in a trust seems odd until you understand how revocable trusts are not that complicated and how you and your loved ones might benefit. The varieties and functions of different trusts are too numerous to attempt to summarize in full, but a common setup for core estate planning is a revocable living trust in which the person creating the trust retains control over their property until they become incapacitated or die. Property properly held in trust generally does not need to go through probate, a court process that invites creditors or unintended family members to make claims against your estate.
If you have a trust, it is critical to make sure that your property is properly owned by the trust. The only way to know for sure what is right for you is to speak with an experienced estate planning attorney. If you are unsure whether your property is properly owned by your trust, talk to us.
More Advanced Planning
The above documents are typically included in a core estate plan, which is the cornerstone to any good plan. However, many families have additional priorities or circumstances that necessitate additional action by them and their attorney. These include:
- Integrating estate planning with family businesses
- Elder law issues, including protection of assets against long-term care costs and Medicaid recovery
- Unique challenges of blended families
- Estate tax risks for high-net-worth families
- Special needs planning
These are all issues which should be raised in a Planning Session, and they can be incorporated into your estate plan.
How Expensive Will My Estate Planning Be?
It depends on how you define “expensive.” It is easy for lawyers to sell potential clients the “cheapest” plan (which happens to involve the least work for the lawyer), but we’ve learned the hard way that offering clients the “cheapest” plan often is much more “expensive” for them in the future in the form of costs, lost resources, and conflict. You will have to spend some money to create a quality plan, but we don’t prepare plans unless we believe the costs of our services are less than the value received, such as the money saved and conflict avoided for our clients and their families in the long run.
In other words, our goal is to save you and your family money and help you pass on not just material wealth, but also intangible assets like your values. More important than the money that is likely to be saved by prior proper planning is the time and peace of mind. Further, we believe that families who plan with our firm become more financially organized, which tends to lead to better management of resources.
With respect to the initial cost of investment, our prices are usually lower than similar levels of service offered by law firms in larger markets. Failing to plan or relying on cheaper documents will ultimately be much more expensive. In any case, after we get clear on a few things in a Planning Session, we will quote you a flat fee price for your plan, so that you can make the best decision for you and your family. If you participate in a planning session, at least you hopefully got clear on a few things, and it’s no loss to you. Compare this to most lawyers who bill hourly, resulting in a blank check that can lead to surprises for you at the end of the representation.
Schedule A Planning Session to Get Clear on a Plan
Schedule a consultation with Daniel or Rizza soon. If you want to discuss what a planning session involves, we are happy to schedule a complimentary 15-minute phone call to discuss. Contact Bryant & O'Connor Law Firm in Vidalia by sending us an email or calling 912-788-5095 to find out more.