Everyone Needs an Estate Plan

Everyone needs an estate plan. If you’re reading this, you’re probably aware that you–and if you’re married, your spouse–need an estate plan. But there are other people in your orbit who need an estate plan: your young adult children. Your children over the age of 18 need an estate plan, too. Yes, even the ones who still live at home, and the ones who you claim as a dependent. Or are away at college. Especially the ones who are away at college.

Anyone over the age of 18 is a legal adult. The law does not care whether that person is gainfully employed or playing video games until 3am. Reaching 18 years of age is an arbitrary measurement, and when it’s achieved, congratulations! You’re an adult! What comes with adulthood is the ability to make your own legally binding decisions… and to prohibit others from making decisions for you. Even if those “other people” are paying your bills, claiming you as a dependent, or housing you.

Consider your typical college-aged child. They are likely over the age of 18, or very close to it. They likely do not have much life experience, and base decisions on the nearterm. They may be impressionable, or easily persuaded. Or maybe they’re just a knucklehead. If, as a result of a misguided decision, they were to become incapacitated (think: hospitalized, detained by law enforcement, involved in a crisis, etc.), no one can make decisions for them without a properly executed estate plan–e.g., will, durable power of attorney, healthcare directive. Not even their parents! You see, they’re adults. Any institutions your adult child interacts with will only want to speak to your child. University administration, banks, authorities, doctors, school officials, etc., won’t listen to anyone but your adult child. They are legally prohibited from listening to third parties, even the parents of an adult.

A young adult crisis can appear anywhere. It could be a party gone wrong. It could be from spending time with that one friend of theirs that they just can’t seem to get enough of. Maybe it was a date or hangout gone wrong. If you, as a parent, want the ability to make decisions on behalf of your adult child, they must execute estate planning documents giving you that authority. Otherwise, you are at the mercy of the local court process. And if your child is away at college, that court process might be very foreign to you, operating under laws you aren’t familiar with.

Maybe your child is in a crisis because someone injured them. With a properly executed estate plan, your child could authorize you to file a lawsuit against the perpetrator on their behalf, speak to school administrators on their behalf, speak to the government on their behalf.

It doesn’t matter that your adult child doesn't “own much”. Or that they aren’t employed, or that they live at home, or live in a dorm and come home often. None of those things matter if your child is over the age of 18, and you want the ability to make decisions on their behalf in a crisis. Everyone needs an estate plan.

What Needs to Happen When Someone Dies?

After a client has designed their estate plan, the most common question we get, by an overwhelming margin, is some form of “What needs to happen when someone dies? How does someone execute this estate plan we have created?”

Notice

When someone dies, there usually isn’t an alert that goes out to your loved ones, your banks, your employer, your utility companies, your credit card companies, etc. Well, unless you’re a celebrity. But for us non-celebrities, the news of one’s death trickles out organically. Loved ones handle the deceased’s remains and any rituals–funeral, memorial, wake, spiritual ceremony, etc. Sometime from a week up to a month and a half after the death, the county produces a death certificate. With the death certificate, the decedent’s loved ones begin to notify all interested parties and organizations of the decedent’s passing.

Knowledge

When the decedent’s loved ones are emotionally and psychologically ready, they begin to piece together what they can about the decedent’s life. This will include discovering the assets and debts of the decedent, obtaining control over any digital accounts and assets (like social media and cloud accounts), as well as determining whether the decedent had an estate plan. Hopefully, the decedent alerted the people involved in their estate plan as to the location of the estate planning documents. That’s not always the case, so sometimes this step may involve a bit of a “wild goose chase” for the documents.

Administration

Once it is determined whether there is an estate plan, steps are taken to administer the estate. There are two main routes of estate administration:

Only a Will, or no estate plan

If no estate plan is discovered, or the decedent only had a will, then the decedent’s estate must go through the probate process. Read our prior post about what probate entails. Our office can be retained to assist the loved ones guide the decedent’s estate through probate if there is only a will, or no estate plan at all.

Estate plan with a living trust

If the decedent died having created an estate plan built upon a living trust, then the administration of their assets is handled privately by way of trust administration. Trust administration is often quicker and less expensive than probate administration. The person named as the successor trustee of the living trust is tasked with carrying out the terms of the trust, along with providing notices required by law, marshaling and valuing assets, paying any debts and expenses, and distributing the remaining assets following the terms of the distribution provisions of the trust.

To assist them, the successor trustee can hire an attorney (like our office, for example!) to represent them in carrying out their duties. Trust administration can differ greatly from one trust to another. Also, trust administration varies greatly whether the decedent was married and survived by a spouse versus being unmarried or the second spouse to die. Trust administration can be handled by attorneys whether or not the attorneys drafted the estate plan.

If you lost a loved one, contact us to schedule a complimentary initial consultation to figure out next steps.