The short answer to this question is “Everyone, age 18 and older needs an estate plan.” It doesn’t matter if you are old or young, if you have built up substantial wealth or if you are just starting out—you need a written plan to keep you in control, not the State of South Dakota, and to protect yourself and those you love.

The Key Takeaways

  • Every adult, regardless of age or wealth, needs both a lifetime plan and an after-death estate plan.
  • Planning for incapacity will keep you in control and let your trusted loved ones care for you without court intrusion – and without the loss of control and expense of a guardianship or conservatorship proceeding.
  • Every adult needs up-to-date health care directives.
  • You need to leave written instructions to make sure you are the one who determines who is in charge of how and when your assets will be distributed.
  • We all need the advice and assistance of an experienced estate planning attorney.

What is an Estate Plan?

Your estate is comprised of the assets you own—your car, home, bank accounts, investments, life insurance, furniture and personal belongings. No matter the size of your estate, you can’t take it with you when you go, and you probably want certain individuals to have certain things you own.

To make sure that occurs, you need to provide written instructions stating who you want to receive your assets and belongings, what you want them to receive, and whenthey are to receive it, and how they are to receive it —that is the essence of an estate plan. If you have young children, you will need to name someone to raise them in your place and to manage their inheritance.

A properly prepared estate plan will also have directives for your care (and the administration of your assets) if you become incapacitated, even for a short time, due to illness or injury. Without the proper documents in place, your family will have to ask the court for consent to use your assets to take care of you and to supervise your care. The process of getting court approval is out of your control, it takes time, it is public, and costs money, making an already challenging condition even more difficult for your family.

It might surprise you, but having a plan in place often means more to families with modest means because 1) they can least afford to pay preventable court costs and legal fees and 2) South Dakota and other state laws, which take over in the absence of planning, often allocate assets in an undesirable way. Here’s an example:

John had two children from a prior marriage, he then marries Mary who had two young with John. John died in a car accident on his way to work. Because he had no estate plan, the laws in South Dakota create a tough result.  Mary received the first $100,000.00 of the estate and half the excess.  The balance is divided between his children. Mary, a stay-at-home mom, was forced to go back to work. The court set up guardianships for each minor child, which required ongoing court costs, including accounting, guardianship and attorney fees. By the time the children reached 18 and received their inheritances, there were not enough resources left for them to go to college. 

What You Need to Know
Don’t try to do this on your own. You need the counseling and assistance of an experienced estate planning attorney who knows the laws of South Dakota and has the expertise to guide you in making difficult decisions such as who will raise your children and who will look after your care at incapacity.  A good estate planning attorney will also know how to carefully craft the appropriate estate planning documents, so that what you think will happen when you become incapacitated or die actually happens.

Actions to Consider

  • Think about your financial situation and assets and how you would like to preserve them for your family. Imagine how you would like your family to be taken care of in the event of your death or incapacity, as well as how you would like to be taken care of in a medical emergency.
  • Don’t worry about how life will unfold; the best practice is to have your plan prepared now based on your current situation.

If you do not have an estate plan or need to update your current plan, I offer a free initial consultation for estate planning. As an estate planning specialist serving Sioux Falls and southeast South Dakota, it would be my pleasure to sit down with you and determine how to accomplish your estate planning goals. I get really excited about helping parents pass on their values, maintain their privacy, and protect their children from creditors, divorce, and bankruptcy.  It is actually fun to teach folks about the amazing planning opportunities that are really available to everyone.

Call or email today to set up a no obligation appointment to meet with me to review your estate planning needs.

Doug Thesenvitz
300 N. Dakota Suite, 603
Sioux Falls, South Dakota