As a Retirement Planning Specialist, there are certain documents I often find missing from my clients files and/or records that are absolutely necessary whether a single individual or couple. The need for these documents is not age directed and should be included and available to your chosen representative(s).
Will or Wills:
Time and time again we are told the importance of having a Will. Many individuals feel they do not have enough assets to warrant a Will. But if you own anything or have children you have two choices; 1, you select, who will get your “stuff” or take care of your children or 2, let the State decide. Maybe you really don’t care right now what happens but someone will have to clean up your mess if you don’t. Very often, in fact most often, once you go this route you never get around to creating a Will or other documents needed to preserve your assets or protect your family. The lack of a Will or finial planning always creates significant difficulty handling transfer of assets (property) in the even of death. Its lack will cause heart ach, bad feelings, serious expense, difficulties for your spouse and/or children as well as destruction of the family. It is not uncommon to find children disinherited because of no Will or lack of an updated Will. Who can make a better determination for distribution of your property or insure your children are provided for than you, the State? If you have a few dollars or a lot how much do you want to give to your family, the State or someone else?
It’s truly amazing considering those who knew better but did not take care of this little matter and what it cost. Abraham Lincoln, Howard Hughes and Martin Luther King are just a few who failed to have a Will or a legal Will and Michael Jackson’s estate is still tied up because although several so called Wills have been found no legal Will has.
In Texas when you die without a Will the Court will give you a Will and appoint your personal representative; the first choice is the surviving spouse if capable, 2nd is the principal beneficiary of the estate, 3rd any beneficiary of the estate and 4th next of kin as determined by Texas Laws of Descent and Distribution. But do you really want to count on this meeting your desires?
Own a home in Texas; the Small Estate Affidavit is not an option when there is a Probate Estate in excess of $50,000.
Can you avoid having a Will and keeping everything out of probate, actually you can but in cases I have seen where this path was taken, the process often failed because it was not reviewed and updated over the years between doing the planning and death. Just to be safe it is never wrong to have a will.
If you have a safety deposit box and just must, place a copy in your safety deposit box but have an original centrally located with your other documents protected from fire and other disasters. Make sure that someone knows about other than you; if you were smart enough to use an attorney leave an original with him. Your personal representative should know where to find your Will as well as other important documents
Trusts:
Trusts are a way of maintaining some control over your estate after death and if designed correctly may preserve assets from the clutches of estate and other tax. You should know, in Texas a child receives his part of the estate at age 18 if you have not take steps to protect the child from himself. Generally, an attorney can provide information concerning structure of a trust which will maintain assets for proper use and protect assets from creditors, legal judgments, family and so much more. Is it expensive there are ways to mitigate the expense for some, but for others the question is do you pay a little now or does your estate and heirs pay a lot later.
Estate Plan:
Depending on size of your estate you may or may not need a formal estate plan. If you are not concerned with Taxes or Probate it is possible to have your estate handled by your will and a few trusts within your will. But we have all been told an ounce of prevention is a lot better than a pound of cure. Having someone consult with you is well worth the effort and can actually be without cost. Many individuals in my profession make no charge for this type review, many life insurance professionals are very able to help and your attorney may be able to advise you in this area as he works with you on your will and/or trusts.
Before we go on there is one area that often escapes review and will cause problems, heart ach, disaster for your spouse and may destroy your family. This item is the beneficiaries you listed on your Life Insurance, IRAs, 401Ks and other such property. Case in point, I had a client who still had his former wife of his first marriage 20 years ago beneficiary of his $1,000,000 life insurance policy. But he had no insurance for his current wife and mother of his two children. He said he thought he had made the change. If he had died there would have been a good chance his wife and family would have never known about the coverage and if they had it would have become a court case.
Many assets and property are handled by direct beneficiary and it is a good idea to have a list of all these assets with beneficiaries listed. This list should be kept in a safe organized file along with your other papers, records, life insurance, other insurances and all of the above. A safety deposit box is not a good place to keep these files. Ask your bank what happens to your safety deposit box when you die or become incapacitated, even if it is a joint box.
Durable Powers of Attorney:
This legal instrument is essential in the event of several situations, such as old age and incapacitation. A Durable Power is more than a standard power of attorney and should always be discussed with an attorney. It would take more word than I care to write as to why some form of this legal instrument is so necessary, in most instances a copy is not acceptable and in certain cases your signature must be certified.
Medical Powers of Attorney:
There is some question concerning the ability of Durable Powers of Attorney effectiveness in handling control of your medical care in the event you are unable to do so. A trusted representative provided with this document could become very important to your care and desires.
Living Will:
Directive to Physicians and Family or Surrogate; at the minimum express your wishes about whether you do (or do not) want life support systems to be used in the event you are dying and there is no hope for recovery.
Estate (Care) Plan:
If you become incapacitated you cannot make legal decisions concerning your property. Someone must have this authority to speak for you and it is better and cheaper to not have to seek a court order.
HIPP Release Forms:
Due to the Privacy Act the completion of these forms on those important to you is very important. Many of my clients have Children in college at some distant from home. If they are over 18 and under a doctors’ care or in hospital you cannot obtain information from these providers without this release form. Even if you were there they cannot legally provide this information. They do not have a choice in this regard; it’s the law which carries significant penalties, even jail time. This also goes for your mother and/or father who may be well into their years. If they now are considered or become unable to make decisions for themselves you may and probably are in a catch 22 position. The form that would have cost nothing will now require a court order, along with attorney fees and the time and expense it takes to prove your position as well as theirs.
Hubert W. McMinn Jr.
Hubert McMinn is a retirement planning specialist working within Texas, USA and located in the Houston area. To discuss any point in this post or any other post, obtain information on your need for Retirement or Estate planning contact him by email at: hmcminn@plannedassets.com or visit: www.plannedassets.com.