Preparing for Uncomfortable Questions When Making an Estate Plan

Studies show that many people do not have a will or other estate planning documents in place even though they need them. Part of this dynamic may be that it is difficult to confront our own mortality.

However, making an estate plan can ensure that your wishes are known and that your family is protected. To execute documents that consider a person’s real wishes, estate planning lawyers must ask difficult and often uncomfortable questions. Some of these questions you may need to be prepared to answer include:

Who Will Raise Your Children if You Die?

One important part of an estate plan if you have minor children is who will serve as your child’s guardian in the event that you die. If you are married to the child’s other parent, this decision is likely easy. Both parents in this situation usually have equal rights to raise the children. However, in the event of divorce, unwed parents or a predeceased parent, it is more difficult. If a guardian is not named in a will and one is needed, the court will appoint one, based on what it considers to be in the child’s best interest.

Do You Have Any Other Children?

While many families are blended families today, estate planning can sometimes reveal family secrets. When creating a will, a parent usually names all of his or her children whether alive or deceased. If the parent does not name a child, some state laws may infer that the parent simply forgot about this child and this child may have a right to inherit even if not given anything in the will. Some states require specific disinheritance language in order to disinherit a child. Failing to inform an estate planning lawyer of a long-lost child, estranged child or child whom the parent chooses not to have a relationship with can cause problems after the parent’s passing when there is a higher emotional and financial cost involved.

What Happens if You Become Demented?

An estate plan encompasses much more than just a will. It will also consider what happens if you become incapacitated or have a mental health crisis. In the event of incapacity, there are several arrangements that you can make to protect your interests. You may wish to establish a power of attorney who helps manage your finances during this time. You may want to establish a healthcare proxy who can make decisions for your health. You may also be able to nominate a guardian of your choosing if a guardian must be appointed.

When do You Want to Pull the Plug?

Many people have very strong feelings about what life-sustaining treatments they receive. Many people do not want to be kept alive through only artificial machines if they are brain dead or have no quality of life. However, others may be worried about healthcare providers prematurely withdrawing treatment and may want all life-sustaining efforts to be exhausted. An estate planning lawyer may help a client prepare a health care directive that specifies whether nutrition or hydration is withheld, whether the client should receive CPR, whether the person will be treated for new conditions and other important considerations. Individuals must think about timing and what circumstances should result in pulling the plug. Additionally, they should discuss this information with their loved ones so that they are aware of the person’s wishes before this situation arises.

What Happens If Your Spouse Dies?

You want to build in contingencies into your estate plan. If you leave everything to your spouse but you both happen to die in the same accident, this event may render your will invalid. Your estate may pass through your state’s laws of intestacy, so other people may inherit your property. You should consider common disasters and who should inherit if someone you name passes away before you do.

Do You Have Frozen Genetic Materials?

If you have frozen sperm, eggs or embryos, this should be discussed in your estate plan. You may wish to include statements regarding whether this material should be used after your passing or if it should be destroyed. Additionally, your estate plan may specifically address whether you want to provide for any children who are born from this material.

Contact an Estate Planning Lawyer

While it may feel uncomfortable to answer these questions, they are designed to ensure that you have a comprehensive estate plan. Contact an estate planning lawyer for assistance developing a personalized plan.

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