To say estate planning can cause stress is an understatement. When you sit down to plan for the unthinkable, you’ll find it can be emotional and downright confusing as you navigate the plethora of “what ifs.”
Many people postpone their estate planning for as long as possible as they may feel they are being faced with their own mortality. Some are afraid they won’t have all the bases covered when they do eventually pass away. Others are simply overwhelmed by the legal process of formalizing their wishes. However, asking the right questions will bring you peace of mind, knowing that your assets and family are taken care of.
Here are six estate planning questions you may have never thought to ask – but should.
What happens if my child’s appointed legal guardian passes away?
If your appointed guardian passes away before you, be sure to change the appointed guardian in your will to another person best fit for your child. It may also be important to discuss who they would appoint in their own will were they to pass away or become incapacitated with the child in their care. Keep in mind the court will appoint a guardian for your child if you do not do so; therefore, this is an especially important part of your estate planning if you have minor children.
Can a probate court overrule my will?
Probate is the process of authenticating your will, including distributing your assets and taking care of any debts owed. A probate court will also address any challenges to your will. For example, per Virginia law, disinheriting your spouse in your will won’t take away their rights to your estate, unless you have a signed premarital (prenuptial) agreement in place that is found legally binding and precludes them from inheriting from you unless you choose to make them a beneficiary.
The requirements in your last will and testament will vary from state to state, so if you own property or assets outside the Commonwealth of Virginia, be sure to discuss this with your attorney to find out how it may impact your estate plan and a future probate process at your death. Using a trust plan rather than a traditional Will might be best for your estate plan to avoid costly probate taking place in more than one state as well as avoiding probate altogether.
What will happen to my digital accounts?
From social media (ex. Facebook, Twitter, LinkedIn) to your financial accounts managed on-line, it’s important to think about the future of your online accounts once you pass away. You may wish to carefully document and store all passwords in a safe place, and consider whether your executor should receive access to those passwords and accounts as part of their duties in settling your affairs. A power of attorney is an ideal document to have in place if you become incapacitated, and it needs to be properly written in order to authorize your agent (also known as an attorney-in-fact) to manage your social media and financial accounts.
How long would I want to be kept on life support?
This is a question that may make you sweat in your seat, yet it’s a necessary one to ponder when estate planning. Documenting your preferences is helpful to your loved ones so they don’t have to make such difficult decisions on their own. Were a tragedy to happen, your preferences will be conveyed to health providers, giving your family peace of mind that your wishes are being met.
A medical power of attorney with end-of-life provisions (sometimes called “a living will”) clearly spelled out and naming a trusted friend or family member as your agent to make these decisions, in case you are no longer able to do so for yourself, is a key addition to any comprehensive estate plan.
Who will take ownership of my pets?
Many pet owners consider their animals as part of the family. However, this may not be the first question you’d think about when estate planning. You may wish to consider who would be able to give your pet a loving home if you pass away before them and want to be sure they are not placed in a “kill” shelter.
Today, states like Virginia have adopted statutes that allow you to create a Pet Trust for your pets’ care and protection, into which you can place funds as well as detailed care instructions for the person you name as the Trustee of that trust. An experience estate planning attorney can also discuss additional documents or options available to protect your pets, not only at the time of your death but, also, during a period of incapacity.
Who would I want to be my power of attorney?
Power of attorney gives you the ability to name someone to make decisions for you if you were incapacitated or unable to speak for yourself. You also have the option to choose someone as a medical power of attorney solely for medical decisions, or a financial power of attorney for financial decisions. Whomever you choose, it should be someone you trust to make the best decisions for you, your family, and your assets. Lastly, you may want a kind of “power of attorney” for the protection of your minor children if you (and the other parent) are both incapacitated (but not dead) and unable to care for them during a period of recovery, and, in Virginia, that document is called a Designation of Standby Guardian. Think of this final document as a way to avoid a foster care event for your child and the process of a Department of Family Services investigation/home visit and approval process to approve a family or non-family member to serve as a foster or guardian of your child.
Have more estate planning questions? An experienced attorney can help.
Estate planning does not have to be as confusing or intimidating. The right attorney can make it empowering and use their experience to help you answer questions you might never have thought you’d have to ask. Attorney Patricia E. Tichenor and the Law Office of Patricia E. Tichenor have nearly two decades of experience helping Virginia residents with estate planning matters. Contact us to discuss your circumstances so we can help you tackle these difficult questions.