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Estate Planning: Don't Wait "Til it is Too Late"

By Gerald I. Street

Many people under the age of 70 think they are too young to start developing an estate plan. However, there are several reasons why I believe it is never too early to start"

  • In all my years of counseling clients, I have never had a client who desired to "book a room "at a nursing home. A comprehensive plan may help you maintain your independence for a longer period of time. Handling the numerous financial, personal and other details of your future care should be completed beforea nursing home is required, not afterwards.
  • In my experience I have found that clients rarely, if ever, ask to leave their personal estate in disarray for their family to deal with alone. Failing to develop a personal estate plan, personalized for you and your family's needs will often leave everyone with unintended consequences.
  • Beginning your estate plan now, regard less of how little you have to leave your family can serve to reduce their future stress and anxiety. Your unexpected debilitation which could be caused by an accident or the rapid onset of mental deterioration are just two examples of why you should not wait.
  • Unnecessary taxes, nursing home expenditures and fees for attorneys and other professional services can drain your resources from the "nest egg" that you worked so long and hard to build. Medicaid now requires a five year look back period when determining eligibility. This period starts once the necessary documents are complete so proper planning can result in substantial savings for you and your family.

A good estate plan depends upon many different professionals, but starting with an experienced elder care attorney is a great way to begin. So start developing your estate plan today!

Gerald Street is a partner with Street & Ellis. P.A. handling Complete Estate Planning and Elder-Care issues. For more information call him at 302-724-4960 or streetellislaw.com

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Guardianship and Your Children

Choosing a guardian for your children can be a very difficult decision to make, but it is a decision well worth making. If you have not selected a guardian to care for your children in the event of your death, the court will make the decision for you. Most parents would rather have control over this very important - and very personal - decision.

Some of the considerations you should make before choosing a guardian include his or her:

  • Financial situation - Will he or she be able to afford to provide for your children?
  • Lifestyle - Do you want a married couple or does it matter if the person is single, dating, widowed?
  • Parenting style - Does the person share the same parenting style as you?
  • Values - Does the person share the same values and morals as you?
  • Religion - Does it matter to you if the person has the same, different or no religion?
  • Housing - Does the person have the physical room to take on your child or children?
  • Children - Does the person have children of his or her own to care for, and if not, is there a possibility of children in the future?
  • Stability - Will naming this person guardian mean your children will have to move out of state, move to a different school or otherwise uproot their lives?

Once you decide whom you would like to serve as guardian, discuss it with them to make sure they are willing. While most people will agree to act as guardian, some may not be comfortable with it. It is also important to have an alternate choice in case your first choice is unable, unwilling or found unfit by the court to serve as your children's caretaker.

It is also important to keep in mind that if the child's other biological parent is still alive at the time of your death, he or she will be named as guardian regardless of your choice. The only time the surviving parent will not be able to serve as guardian is if he or she is proven to be unfit, has legally abandoned the child or declines the appointment. Proving the surviving parent is unfit can be particularly difficult unless there is a well-documented history of drug, alcohol or child abuse, or mental illness.

Non-biological parents do not have rights to guardianship if a biological parent is still living. This can create a difficult situation when parents are divorced and one parent may not want the other to be the guardian. The only time non-biological parents have rights to guardianship is if they have adopted the child. Adoptive parents have the same guardianship rights as biological parents.

You can name a guardian either through will or deed, depending on your state's laws. Some states require the will to be admitted to probate before the guardian designation can take effect. Some states require the court approve the appointment of guardian. The court is not required to uphold the deceased parent's choice of guardian. If the court finds the guardian unfit or unable to provide for the child, the court can name a different person to act as guardian. However, so long as the person named is qualified and it will not be harmful to the child, the court will uphold the parent's designation.

Deciding whom to name as guardian of your children is an important step to take to provide for their well-being in case there comes a time when you cannot.

Preparing to Meet With Your Estate Planning Attorney As you get ready for your first meeting with an estate planning lawyer, you should plan to bring certain documents and information with you. This information will help your attorney develop an estate plan suitable to your specific situation and goals. This list is only meant to be a guide, and there may be additional information your attorney will request. Financial Information (including account names, numbers, balances and current statements)

  • Bank accounts
  • Investment accounts (annuities, mutual funds)
  • Stocks
  • Bonds
  • U.S. Treasury notes

Retirement Savings Information (including balances, beneficiaries, outstanding loans and current statements)

  • 401(k) accounts
  • 403(b) accounts
  • IRAs
  • Life insurance policies
  • Social Security statement
  • Pension

Property Information (including property description, address, ownership interest, market value, outstanding mortgage balance and most recent tax assessment)

  • Primary residence
  • Rental properties
  • Vacation homes
  • Business property
  • Personal property of value (antiques, collectables, automobiles, jewelry, art)
  • Inheritance (current or anticipated)
  • Interest in trust (current or future)

Business Information (including interest in the business, location)

  • Closely-held business
  • Family business
  • Limited partnership

Family Information (including names, ages, addresses)

  • Spouse
  • Ex-spouse
  • Children
  • Stepchildren
  • Grandchildren

Other things to consider

  • Who would you like to receive your property?
  • Is there anyone you would not want to receive your property?
  • Do you want to leave anything to a charity, university, church or other organization?
  • Who would you like to serve as executor of your will?
  • Who would you like to serve as trustee over any trusts?
  • Would you like to appoint a guardian to care for any minor children?
  • Do you want to create a living will and a durable health care power of attorney?
  • Do you want to assign other powers of attorney, such as for your finances?
  • Do you want to leave instructions for your funeral arrangements?
  • Do you want to donate your organs or donate your body to science?
  • Who would you like to serve as alternate executor, trustee, guardian or power of attorney if your first choice is unavailable or unable to fulfill the duties?

Finally, consider your overall goals and desires for your estate plan. This will help guide your estate planning attorney in developing a comprehensive plan tailored to meet your individual needs.