Sunday, August 19, 2018

Did you?

Many of the people I talk to don’t realize the State has already written an estate plan for them. 

Did you?

The state has already decided who gets how much of your stuff.  But, the State didn’t say who gets exactly what, just how much.  This invites family fighting over your goods.  And, the State doesn’t put a time limit on how long the process will take, and it may take a year or more.  That’s a year or more of hearings, motions, petitions, and more.  That’s a year or more that money and assets can be tied up waiting for the process to finish.

Many people don’t realize they don’t have the legal right to make their spouse’s legal, financial, and healthcare decisions.

Did you?

The State has already decided how somebody can apply to manage your legal, financial, and healthcare decisions when you can’t.  Yes, they must apply, via a petition to the court.  Then they have to appear in court to finish the process.  Even if it’s an emergency, they still have to go through the process.  Then, the power they have is limited.  They must ask the Judge to do certain things for you.

You can stop all of this by writing your own plan!

In a Law Will and Testament or Trust, you get to decide who gets what.  With a Trust, you can choose when.

With a Durable Power of Attorney, Power of Attorney for Healthcare, and Living Will you choose who will take care of you when you can’t.

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Tuesday, July 24, 2018

What The Worst That Can Happen (Without an Estate Plan)?

Despite the importance of having an estate plan, a minority of Americans have their own plan in place.  If you don’t have a plan, the State has a plan for you, and you probably won’t like it.

The purpose of an estate plan is twofold.  The first is the traditional planning you probably think of, passing your property to the next generations.  The other is the lifetime part of planning.  The planning many people haven’t thought about.  This planning is setting up control now and keeping control later if you can’t make rational decisions. 

Both parts replace the State’s plan for you with your own plan.

Court Interference in Your Financial, Legal, and Healthcare Choices and Affairs While Living

Arkansas, like most states, has a process in place for a person to take over your decision making if you are mentally incapacitated.  It’s called a “Guardianship.”  The Judge may take away part or all your legal right to make decisions and give those rights to somebody else.  The Court is “ripping away” your rights.

If you are incapacitated – unable to make your own rational decisions – family members may be forced into court to take over your affairs against your will.  It may not be the family member you would pick to manage your affairs.  Maybe it’s your daughter.  The one that has a hard time managing her own finances.

The other issue with becoming a guardian is that the person must be qualified.  By qualified, they must be 18, not have an unpardoned felony on record, and not be guardian to more than 4 other people among other qualifications.  So, if you only have one child and they have been convicted of even a minor felony and not pardoned, they aren’t qualified to be your guardian.  If you are a single parent, and all your children are under 18, they aren’t qualified to be your guardian.

You can stop this from happening by creating a power of attorney for finances, legal affairs, and healthcare.

Intestate Succession – “Probate Without a Will”

Something is going to be done with your property.  And you don’t get a say in what it is.

Most states, including Arkansas, have a legal process in place to pay your final bills and expenses; settle disputes; and distribute your property.  Without a plan in place, disputes over who gets what must be resolved by a Judge.

Without a plan in place, your family will have a more difficult time navigating the process.  The Court will be in charge of the entire process from beginning to end.

Your family can expect this process to take about a year.  It involves multiple trips to court for hearings.  During this period, assets are frozen.  Family can qualify for an allowance, but it isn’t very much.

The rules aren’t necessarily terrible.  The State Legislature thinks the rules are the closest to what the average person would want done.  However, most people would change these defaults some.  For example, the rules say your children take first, then parents, then siblings.  Maybe you want your siblings to take it all because your want to disinherit your child.  You may want to give something to charity or a friend.

When the first person in a marriage passes, the process isn’t usually too bad if most of the assets are co-owned by both spouses.  Ownership simply changes to the living spouse.  However, when the second person passes, the process is long and a hassle for the remaining family.  And, if both pass in the same accident, then the distribution of your property goes to Court.

Arkansas is different than some states in how the property is distributed.  Your spouse gets one-third of everything but the real estate that isn’t co-owned.  Your spouse gets a one-third “life estate” in the real estate that isn’t co-owned, including the family home.  If your children are under 18, then the Court will force the assets into a Trust to be managed for their benefit.  The Court also gets to pick the Trustee to manage the Trust.  This may be a professional who will charge high fees to manage the Trust.

Intestate success is stopped with a variety of tools.  One of the most common ways is the revocable living trust.  A revocable living trust completes circumvents the courts.  Another advantage is that you can maintain control over the assets after you’ve gone.

Life Support

While you may have thought about who will manage your money and who should get it, many people haven’t considered the possibility of being on life support for decades while their family fights over them.

Terri Schiavo was a young lady who had a heart attack.  She was left in a permanent vegetative state.  Her husband and her mother fought over removing life support for 15 years before life support was finally removed.  This case involved 14 appeals and numerous filings. The autopsy revealed such extensive brain damage that she could never have been expected to wake up. (https://en.wikipedia.org/wiki/Terri_Schiavo_case)

And, if you review the section above on guardianships, your healthcare decisions may be taken over by a family member if you can’t make them.

For example, if you have a major stroke and are having troubles with decision making, a family member (or adult protective services) can step up and ask the Court for permission to make your healthcare decisions until you are capable again.  It might not be the person you expected or wanted it to be.

If nobody steps forward to make decisions, then it is up to the social workers and doctors to make decisions, or to call Adult Protective Services.  Adult Protective Services is a branch of the Department of Human Services in Arkansas that steps in to protect adults when nobody else will or can.

Create an advance directive (living will) and healthcare powers of attorney to make sure you don’t have to go through something like Terri Schiavo.

Family Fighting

Maybe the worst thing of all is hoping your children won’t fight, but they end up fighting over the little stuff – the sentimental stuff.  Or they end up fighting over small sums of money because they feel it’s unfair that the State decided to evenly split the money between them.

You can read about how a family fought for years over a $1.50 Tweety Bird statue mom kept in the kitchen here https://www.cnbc.com/2017/10/10/7-ways-that-cheap-tweety-bird-figurine-can-screw-up-your-estate.html.

That is just one example of families fighting.

A friend of mine told me he and his brother fought over their dad’s estate.  He said they literally fought over nothing.  Their dad had very little, yet they fought over it.

While parents don’t expect or want their children fighting over their stuff, it happens.  And it often rips families apart.

You can minimize the chance of family fighting by creating a comprehensive plan that includes passing of goods in line with your wishes and making your decisions now.

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Thursday, June 21, 2018

The Unvarnished Truth

You have an estate plan.  What?  I do?

This isn’t meant to scare you, but to present the unvarnished, cold, hard truth of the legal system of probate/estate administration and how it affects you.  To prepare you for what lies ahead.

Yes, you do have an estate plan, the state of Arkansas has written it for you already…It’s called “intestate succession” and “guardianship.”  Both involve your family and/or you suffering through the hassles of court and judicial intervention.

During your lifetime, if you are incapacitated, in order to manage your affairs, your family will have to go to court to seek a guardianship.  That is, they ask a judge to rip your rights away and take over your decisions and life.  Your rights to make financial, legal, and medical decisions.  

After your lifetime, your family will face the seemingly endless hassles of the court system in “intestate succession.”  This is a form of probate and administration when you didn’t leave a last will and testament.  Your family ends up in court to divide up your belongings and property.  It takes at least 6 months to get done (because of legal requirements), and in the meantime, the money and property is tied up.  The lawyer gets paid first from your probate estate.

Your probate estate is divided up like this:

  • Your children split the probate real estate subject to a 1/3rd life estate of your spouse.  If you are not married, your children split the probate real estate.
  • Your spouse doesn’t get the probate real estate outright.
  • Your children get 2/3 of the other property, like money, of your estate and your spouse 1/3.
  • If you aren’t married and don’t have children, there is a table to look up who gets your stuff in the statutes.

But, there is a solution!

You can create your own plan.  And, the best way to get started is to read my book.

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Saturday, June 9, 2018

What Do You Have to Lose?

Every day you don’t have a plan is another day you risk:

  • Losing Independence. Stay independent for as long as possible, even if you become unable to do things completely on your own.
  • Losing Control. Take control and stay in control of your affairs, matters, and money.  Pick somebody now that you know and trust to take control if you can’t. You want to be the person who decides who manages your affairs, not a judge.  And, you decide who gets what when and how much, not the courts.
  • Money. Probate and Guardianships are not only more expensive and time consuming but also highly stressful on your family.
  • Stress on you and your family. Be ready to spring into action in stressful situations instead of forcing your family to seek legal help from a lawyer and judge. 
  • Legal Red Tape (probate and guardianships). Your family can get caught up in a seemingly endless loop of court appearances and legal paperwork not to mention fighting with each other to manage and settle your affairs.

You can minimize your risks and maximize your peace of mind when you create your risk management plan!

Feel free to reach out to me at (479)717-6300 with any questions or to setup your first meeting.

Planning protects you now and your family later from risk, stress, expenses, fraud, duress, scams, and more…  Stop your family from going to court to manage your affairs.  Minimize your risk and maximize your peace of mind by creating your risk management plan!

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Sunday, May 20, 2018

Why does probate in Arkansas take so long?

Probate, with or without a Last Will and Testament, will take a minimum of 6 months!

Opening Probate

Opening probate is done by filing a petition with the clerk.  In Arkansas, if nobody objects, a hearing can be done immediately.  However, if any party has entered a demand for notification, then a hearing will happen after about 30 days, delaying the opening of probate by a month.

Advertising and Notification

This is due to the advertising requirement:

Arkansas Code Annotated § 28-40-111 – Notice of appointment of personal representative requires that creditors be given 6 months to present claims to the personal representative for payment.

…all persons having claims against the estate to exhibit them, properly verified to him or her, within six (6) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.

Accounting and Inventory

If accounting and inventory is required, there is a 2 month advertising requirement for each accounting.  This doesn’t include the time to prepare the accounting and inventory.  After the inventory is advertised, then it must be approved by the Judge which requires a petition to be entered and and order to be issued by the Judge.  This can add 30 more days if the Judge wants anybody to appear.

The first accounting can be done while the 6 month notification period is running.  So it can overlap that waiting period.

The second and subsequent accounting add 2 months each to the probate.

So, if even one person involved didn’t waive the requirement for accounting, then the Probate is now up to 8 months.

Preparation

Allow another month in here for preparation of documents, inventory, and accounting.  Now the Probate is up to 9 months.

Close

After the advertising period, payment of creditors, inventory, and accounting, a petition to make the final distribution and close the probate can be made.  Getting all of this wrapped up should take about a month.

Overall, the Probate has taken 10 months.  Without inventory and accounting, it can be cut back to 8 months.

Hitches and Glitches

Of course, this is assuming everything goes as it should.  That nobody challenges any part of the process.  That no petitions have to be entered to sell property, and more.

If any of this happens, then it could add more months.

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Monday, May 7, 2018

Estate Planning Misconceptions – Mistakes that Cost – Part 4

MISCONCEPTION #12: I should just put my children on my accounts and deed.  No!  Only do this if you understand all the negative consequences putting your children on your accounts and deeds has!  Their creditors, predators, and judgments can reach your assets and take them away from you.  Assets you may desperately need in your retirement years.

MISCONCEPTION #13: Estate Planning costs too much.  In comparison to what?  The value of estate planning outweighs the cost in money.  Probate can easily run $3,000 to $4,000 in today’s dollars.  In the future it could cost much more.  The government could decide to bring the estate tax exemption down to low levels and cost you a fortune unless planning was done ahead of time.  What are your personal, financial, and healthcare decisions worth to you?  Do you want somebody you know and trust to be there to manage your affairs and money when the time comes?  The only way to be sure that all of this happens is to have a plan in place.  A plan that includes a Durable Power of Attorney.

MISCONCEPTION #14: I only need a Will.  A Will is only part of an overall plan. A Will only controls the assets listed in it.  A Will (in most states) does not control beneficiary designations.  If you get remarried, or you beneficiary should pass first, you may lose control of hundreds of thousands of dollars of assets!  Also, a Will must go through probate to be validated and the assets distributed. The best insurance is to have a Trust as your primary or fallback plan and as a safety net to catch those assets and distribute them as you want.

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