What can an estate plan do?
An estate plan is a set of comprehensive documents that addresses your financial and health care wishes in the event of your incapacity, guardianship during incompetency or after death, and distribution of your assets after your death. These documents pack a lot of important decisions in them.
- Address incompetency
A Power of Attorney is a document in which you (the principal) give another adult (the agent) authority to make decisions – either for financial or health care matters – on your behalf. It must be written, signed, and notarized to be valid. There are a wide variety of powers you can give your agent, but generally speaking they will have the same power as you do.
A financial power of attorney allows a person to handle financial transactions on your behalf. It should be durable, which means it will not terminate upon your disability or incapacity. This is extremely important because most people only want a power of attorney in the event of incapacity. Your agent must act as a reasonably prudent person would, this means they can only spend your money if it is in your best interest.
A health care power of attorney works much like a financial power of attorney; you, as the principal, appoint another adult, an agent, to make health care decisions for you in the event of your incapacity. It also must be in writing and signed. In some states two witnesses are required instead of a notary.
- Asset Distribution
The laws of each state dictate who receives your property if you do not have a will or trust; these laws are called “intestate succession” laws and are typically pretty similar but vary slightly from state to state. Here you will find a quick review of the Missouri laws and the Kansas laws. These laws make no allowances for step-children, nor do they allow an estranged child to be disinherited.
For example, if you are married without children, your spouse will receive everything. This is likely what you would have dictated in your will, so this doesn’t worry too many people. The issues typically come up with a second marriage when you have children from your first marriage; in this event your spouse will receive half of your estate and your children will split the other half in equal shares. This could be potentially devastating if your children are minors – most people want their estate to care for their children since they are not able to provide for themselves. In second marriages, spouses often provide for their children and waive their right to a marital share.
- Guardianship
Unfortunately, there is no clear-cut, step-by-step process for appointing the guardian of your children. All persons interested in serving will apply and the judge will have a hearing to determine which person should be appointed. As you can imagine, the judge will make a decision based only on the information they have in front of them, which will be the information each potential guardian supplies to them. Of course this will put each guardian in the best light possible. The person the judge ultimately chooses to be the guardian may be the perfect person to raise their children, but you likely have different values than the judge and may prefer someone totally different. The best potential Guardian on-paper may have a strained relationship with a family member or two, and the process very often leads to fighting if the family does not agree.
When you create an estate plan, you get to dictate who will be the guardian of your children in the event of your incapacity or death. While there may be no perfect choice for a guardian of your children, the important point is that it will be YOUR choice. Even a potentially-flawed choice made by you will always be better than a choice made by a third-party who does not know you or your children.
If you would like to have your estate plan tailored to meet your specific goals and the needs of your family, please email info@weeselawfirm.com or call us at 913-706-8491.
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