Why does anyone need an estate plan? We all have some idea of what should happen to our stuff after we die. A lot of people think “just let my spouse or kids have my stuff when I die.” Some people think “I really don’t have anything to leave behind.” Others figure that they will not be around to worry about it so it is really not their problem; they think it is not important.
People who create estate plans find out that there is a lot more to it than just passing on what is left when they die. A lot of people have a simple will and think that is all there is to it. There stuff will go where they want when they die.
The problem is that a will is just a piece of paper until you die. Even then the will does nothing until it is filed with the public probate court. The will does nothing while you are alive.
What if you don’t die but you get sick? What happens when you can no longer make decisions on your own? Without an estate plan your loved ones have to go to court and get a guardianship and conservatorship to get the authority to care for you and pay your bills. They can go to the South Dakota Supreme Court’s website and get the forms for the proceeding. But they will still have to hire a qualified mental health professional to give you a mental health examination. (The last time I did that it cost the client more than $2,000.00.)
Then they have to go to court and ask a judge to accept the examination and have you declared a person who needs a guardianship and conservatorship. After that, a judge will decide who takes care of you. You may not get to make the choice. As it turns out these are not private proceedings. Other people could see and hear what is going on.
The person you want may be selected or maybe not. If they are appointed by the judge, they have to file reports and inventories and have a judge looking over their shoulders for everything they do.
It can be quite burdensome if you do it on your own. Many people just hire an attorney. A guardianship proceeding can run into the thousands of dollars. Still people hire attorneys for this because they discover that Abraham Lincoln was correct when he quipped that “A lawyer who represents himself has a fool for a client”. Another way to say that is that in these situations where it involves family it is very difficult to see the forest for the trees.
If you have a properly written estate plan you will have pre-selected the person who will take care of you when you cannot. You will have selected the a person you love and you trust and who loves you and knows your wishes. They will not need to have a judge looking over their shoulders all the time.
You may have a loved one who cannot manage their money. We all have loved ones for whom any inheritance at best would be squandered and at worst could lead them to ruin.
You may have loved one who is on SSI. If you do not plan they may inherit directly from you. The result of your passing could disqualify them and their benefits could be taken away.
Why Estate Planning? A properly drafted estate plan can be an expression of love from you to your loved ones. You can make their lives easier by letting them know your wishes. You decide who cares for you when you are sick. You decide what goes to whom, how and when.
If you would like to work on your Estate Plan, give me a call, 605-334-9448.
Doug Thesenvitz