What is an Estate Plan?

Any maneuvering one does in contemplation of his/her future incapacity and/or death is estate planning. It may be as simple as gifting certain assets while alive, getting a POD (Payable-On-Death) beneficiary in place on a checking account, invoking a DPOA (Durable Power of Attorney), or executing a Last Will and Testament. Or, it may be a bit more involved and include a Trust and other estate planning tools. Let's develop an Estate Plan Checklist customized for your needs today!

What is probate?

The word "probate" is what I call a 'slippery' term.  Most of us have heard the word, but cannot clearly define it.  What's more, it gets used as a noun, verb, and adjective, which makes it all the more confusing, I think.

If you pass with no estate planning or with a Will, only, much or all of your estate will be subjecto to probate - especially those things you own by deed (your house and other real estate), title (your vehicles, trailers, boat, etc.), or account name (your checking, savings, money market and other bank accounts).  

In the event you had no estate planning, your State's probate code (or set of probate statutes) will be referenced to determine your heirs at law (those entitled to inherit from you), as well as how much of your estate each heir will inherit.

If you pass with a Will, only, your State's probate code will be referenced for purposes of 'probating' your Will.  In this sense, the word "probate" references a very tedious and methodical legal process by which a Will is 'validated' (or, as the case may be, 'invalidated') and thereafter given effect.  If you have a Will, understand that it has no legal effect until two things happen:  1) you pass away; and 2) a probate court declares your Will is valid (i.e., not forged or otherwise defective).  


Why do I want to avoid probate?

When it comes to estate planning, there is only one 'no brainer' - avoid probate!  That is, develop a plan designed to keep your loved ones and your assets out of the probate lawyer's office and out of the probate judge's courtroom.  Probate is a very tedious and lengthy legal process that invariably requires an experienced and knowledgeable attorney.  In short, there are four 'kickers' that come with probate:

  • cost (expect the process to cost roughly 3-5% of your estate);

  • time (expect probate to tie assets up for 12-18 months!);

  • public (your Will and other probate matters are, generally, open and available to the public); and

  • assets are subject to unsecured creditors (while I do not condone not paying legitimate debts, sometimes having to open a probate case can result in a seemingly unfair result in this respect).

What is a Living Will?

As a part of your estate planning checklist, a Living Will, generally, makes known to your doctors and loved ones your specific wishes for end of life health care measures in the event your doctors have concluded that they cannot communicate effectively with you, their patient, and you are either permanently unconscious or brain dead or death is imminent and cannot be helped. By preparing your Living Will before the often intense, emotional times experienced when facing end-of-life issues, you offer those closest to you relief from the burden and stress of trying to guess what your wishes might be... and, even more so, greatly reduce the liklihood of them arguing about your wishes. 

A combination of a healthcare power of attorney (or healthcare proxy), living will, HIPAA Waiver, and various other healthcare documents is often referred to as an Advanced Directive.

What can my family expect if I die without an Estate Plan?

A percentage of the money and assets you intended to go to your children (or grandchildren or a charity) will likely go, instead, to a probate lawyer for 'probating' your estate (typically 3% to 5% of the combined gross value of all your probate assets at the date of your death! Convert that percentage figure to dollars and it's an eye-popping amount for most people).

Your children may have to wait... and wait... and wait to access any of your money or assets. Probate proceedings involving real estate often last 18-24 months! 

A breeding ground may be created for disagreement and turmoil amongst your children, beneficiaries, heirs, etc.

The probate process is public! One of the big perks of a living, revocable trust (a simple probate avoidance trust) is privacy.

In short, there is absolutely no reason to allow any of your assets or your family to fall subject to probate!

Lastly, if you want to decide WHO is taking care of you and your assets while you are incapacitated and after you have passed AND also control HOW they are going about it, then you must have a plan. Otherwise, you are leaving such matters up to one or more lawyers and a probate judge.

What can I expect an Estate Plan to cost me?

I generally charge $75 for intitial consults, which average a couple of hours. After an initial consult, there is usually not more than two or three plan options that make good sense, and one of the options usually stands out as the most viable/plausible.  I can then quote the prospective client a reasonable flat fee for that agreed upon plan. That way, people know and understand on the front end (and before hiring me) exactly what their total costs/fees will be, and more particularly, what to expect in exchange for that fee.  

More generally, Estate Plans shouldn't cost but a small fraction of what the attorney’s fees, court costs, taxes (potentially), and other expenses that are associated with probate will cost and that will occur if you pass without a plan at all or with a Last Will and Testament, only. Some people will say to me, "If I'm already gone, what do I care?" Well, if you don't mind unecessarily lining the pockets of attorneys with money you've left behind that could have otherwise lined your children's (or grandchildren's) pockets or a charity, perhaps, then by all means, pass without an estate plan... or pass with a Will, only.  You'll likely do just  that! And, you'll also leave behind some loved ones who may not be too happy with you... or each other.

All Estate Planning packages are provided for a sensible Flat Fee. Flat fees vary depending on the set of facts presented, the 'wants/wishes' of the client, and overall complexity of the plan.  I, however, make a conscious effort to price plans in a way so that the client is not picking and choosing between plausible options based on costs, or much worse, whether to have an estate plan at all. A good estate plan should be accessible and affordable to everyone!

If hiring me, expect to pay somewhere between $375 and $2,950, depending upon your particular estate planning needs. It's difficult for me to be any more specific than that having not yet met you, much less discussed your estate and your wants, wishes, and concerns.  With that said, if you need/want a trust, expect to be in the $1,200 to $1,975 range.  I'm a 'true' solo, which greatly reduces my overhead. That, in turn, allows for what I know to be very reasonable fees, comparatively.

What are the 'nuts & bolts' of a Living Revocable Trust (as opposed to an Irrevocable Medicaid-Planning Trust)?

With the much more common revocable trust, while you and your spouse (or just you) are alive, you each serve as Trustees (or managers), maintaining absolute control over your money and assets that have been placed into your Trust. You maintain the ability to buy, sell, and transfer assets in, fundamentally, the same way as you always have. Should you become incapacitated, however, your Successor Trustee (pre-chosen by you) takes over and manages your assets for your care and benefit. Upon your death, your Successor Trustee properly maintains your assets until they can be distributed to your children (or other beneficiaries) upon them reaching an appropriate age. 

Irrevocable Trusts (often used for Medicaid planning purposes), on the other hand, require one to relinquish 'incidents of ownership and control' over their assets. Many people with these types of trusts do not even realize they have relinquished control of their home (or other assets they placed into this type of Trust) until they try to sell their home. Be careful and do your research before executing an irrevocable trust!

Can I do my Estate Planning from the comfort of my home?

You absolutely can! Although my office is at Mountain Home, Arkansas, I am licensed in both Arkansas and Missouri - you need only be a resident of one of those States. You can request a phone consultation to address all of your estate planning needs right from the comfort of you own home. Draft documents (made easily digestable) can be mailed to you for your review, followed of course, by another phone consultation (or multiple phone consults, if necessary) to go over the documents so that you fully understand each document and to ensure that they address all of your wants, wishes, and concerns. Final documents can then be mailed to you with instructions on how to properly execute them, along with a convenient self-addressed, prepaid return envelope, so that they can be properly organized and assembled into an estate planning binder (or 'toolbox', as I like to call it).  

You can always engage me after the fact with any questions you have regarding your estate plan. Why pay a substantial online fee only to toil with 'fill in the blank' forms that leave many questions unasked and unanswered when you can pay a one-time, reasonable flat fee and have the best of both worlds? That is, getting your estate planning done from the comfort of home AND having an experienced estate planning attorney engaged directly with you through every step of the process to ensure the resulting documents are both professional and tailor made for you and your family.

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