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No one wants to think about dying or becoming unable to make decisions for themselves, but as uncomfortable it is to think about, eventually everyone will die—and everyone will leave things behind. That’s why estate planning is so important. It allows you to control how your belongings are distributed and how your family is taken care of after your death.

In order for estate planning documents to carry out your wishes successfully, you need to think about and answer some tough questions while working with your estate planning attorney. It is important to note that conversations with your estate planning attorney are completely confidential and that the more information about your situation that you can provide to your attorney, the stronger the estate plan can be.

Information you should provide to your estate planning attorney include:

Do you have any other children out there?

If you have other children that you haven’t told your estate planning attorney about—tell him or her now. If your attorney doesn’t know about all of your children, it’s possible that a descendant with whom you have had no contact or whom you didn’t know existed could turn up after your death and claim part of your estate.

As technology progresses, it’s also important to think about the potential rights to your inheritance of any children that are born from eggs, sperm or fertilized embryos that you are currently storing for later use.

Were you ever married before?

If you were married previously and named your ex-spouse as a beneficiary on a pension plan or life insurance policy, he or she could inherit that money. So be sure to update your beneficiary information when big life changes happen, like if you are divorced, separated or widowed. If you are in the midst of divorce proceedings, consult with your divorce attorney before making changes to your beneficiary designations or, for that matter, any of your estate planning documents.

Also, if you were married before and your divorce was never finalized, or if you are separated, your ex-spouse could be entitled to part of your estate under your divorce decree. So be upfront with your estate planning attorney and provide as much information about your personal life as possible. Doing so could keep your estate from being subject to an expensive litigation after you die.

Who do you want to raise your kids if you die?

This is a particularly hard topic to discuss for parents. Not only is it difficult to think about leaving your children, the actual task of deciding on a guardian can be excruciating, leading to family arguments and stress. That being said, if you don’t name a guardian and the unthinkable were to happen, a judge would be the one to decide who raises your children. If you aren’t comfortable leaving that decision up to a stranger, then you need to discuss this with your attorney and name a guardian whom you trust.

If you have pets, you may also want to think about who will take them when you die. This is especially important if you have animals with long life expectancies, like horses.

What if you and your immediate family all die in a common disaster?

Since many people name their close family members in their will, the question remains: who gets the estate if the whole family dies at the same time? While unlikely, this scenario is not impossible and you should plan for this just in case.

If you don’t come up with a plan for this scenario, state law will determine who is the next of kin for each person who died. If you would rather your estate go to a close friend or charity instead of a second cousin twice removed that you’ve never met, you should include them in in your estate planning documents.

When do you want to be taken off life support?

As medical technology advances, people with injuries that would have killed them in the past can be put on life support. This can put a large financial and emotional burden on loved ones. For many people, the thought of being kept alive by machines with no hope of rehabilitation sounds like a nightmare, but in some cases family members can find it difficult to make the decision to take someone they love off of life support.

You should discuss and if appropriate, sign health care directives so your wishes can be made clear if you are unable to speak for yourself. You should also talk with your loved ones and make sure they know what you want to happen in case you become incapacitated.

Having these conversations now, although uncomfortable, can ensure that your wishes are carried out in the way you had planned. For example, if you find out that your son or daughter is not comfortable making the decision to take you off life support, you will know that he or she isn’t the right person to step in for you if that decision needs to be made and you can name someone else in your health care directive.

What are your passwords, usernames and answers to security questions?

In our increasingly technology-driven world, most people have a lot of information stored online. You may have online accounts for bank accounts, social media, email and other important assets.

Create a list of these accounts and their login information and then make a plan for how you want the person to whom you are leaving access to be able to access the accounts. Some people choose to leave this information in a safe deposit box, but that isn’t always the best option because many banks won’t allow anyone access to the safe deposit box until the deceased box owner’s will is probated.

A better option is placing the information in a fire proof safe or lock box at home and then provide your family member or your attorney with the combination or the location of the key. There are also some online storage services that allow you to keep all your passwords in one place.

If you have questions about estate planning in Arizona or Wiscosnin, please reach out to an experienced attorney. At Bredemann & Shellander PLC (LINK), we specialize in estate planning and pride ourselves on taking the time to understand your unique situation so we can guide you through the estate planning process. Give us a call at 480-998-0999 or schedule a consultation online (LINK).

The article above is intended for education purposes only and should not be considered legal advice. If you need legal advice, contact an attorney regarding your situation.

When people hear the word “probate” they think of long-drawn out court hearings, expensive fees, and delayed distribution of estate assets. While these things could happen, they aren’t the norm for most estates that are probated. There are two types of probate proceedings for handling a decedent’s estate, informal probate and formal probate.

Probate is a legal proceeding in which the validity of a deceased person’s will is proved, an inventory of the person’s assets is prepared, assets of the estate are valued, the debts of the decedent and expenses of administering the estate are determined and paid, and the remaining assets are paid to beneficiaries in accordance with the decedent’s will or, if he or she does not have a will, as provided under the law. Contrary to what many people think, if a person dies without a will, his or her assets do not automatically pass to the state. State law that determines which family members receive the decedent’s property if he or she doesn’t have a will, or if his or her will does not dispose of all of his or her assets. This law can be overridden by simply having a valid will that disposes of all property of the estate.

Informal Probate:

This is the type of probate proceeding is used when the will being probated has not been challenged and there are no significant issues that need to be decided by the probate court. The vast majority of estates settled in the probate court use the informal probate process. During an informal probate, the court is much less involved than in a formal probate. Many cases don’t even require an appearance in court. All required documents can be filed with the court by mail.

Formal Probate:

This is the process that is initiated when there is a dispute regarding the estate such as whether a will is valid, who should serve as the personal representative, etc. If there are conflicting interpretations of a will, a formal probate will most likely be used to confirm the true meaning of the will.

Will all of my property have to go through probate if I don’t have a trust?

Probably not. Some assets pass on the death of the owner automatically by operation of law. There are two primary types of assets that pass by operation of law: “survivorship assets” and “beneficiary designation assets.” It is important to coordinate your will or trust with beneficiary designation assets in order to avoid unintended results.

Survivorship assets are titled the names of multiple owners and pass automatically to the surviving owner(s) when one of the owners dies. Here are some examples of survivorship assets:

Bank and financial accounts or other property titled in joint tenancy with right of survivorship pass automatically by law to the surviving joint tenant when one of the joint tenants die.
Bank and financial accounts or other property titled as community property with right of survivorship pass to automatically to the surviving spouse when one of the spouses die.

Beneficiary designation assets remain the sole property of the owner until his or her death, when the assets are paid to one or more beneficiaries the owner designated in writing. Beneficiary designations can be changed or revoked by the asset owner for so long as he or she is able to do so. Here as some examples of beneficiary designation assets:

Life insurance policies and annuities pass after the insured’s death to beneficiaries designated in a beneficiary designation form that is signed by the owner of the policy or annuity and filed with the issuing company.
Retirement funds, such as IRAs, Roth IRAs or 401k accounts pass after the account owner’s death to beneficiaries designated in a beneficiary designation form that is signed by the owner and filed with the plan administrator or IRA sponsor.
Financial accounts that have TOD (Transfer on Death) or POD (Payable on Death) designations pass after the account owner’s death to beneficiaries designated in a beneficiary designation form that is signed by the account owner and filed with the financial institution at which the accounts are located.
Real estate that has one or more beneficiaries designated in a deed signed by the owner of the real estate and filed with the county passes on the death of the owner to the beneficiaries designated in the deed.

Survivorship Assets and Beneficiary designation assets are not for everyone:

While survivorship titling and beneficiary designations are very efficient means of passing assets on death, they are not always appropriate. For example, if an elderly parent titles a bank account in joint tenancy with rights of survivorship with a child so the child can write checks for the parent, the entire balance of that account will pass to the child, which may not be what the parent intended. In such case, other children of the parent may be unintentionally excluded as beneficiaries; a power of attorney may have a more appropriate means of providing the child the ability to pay bills without affecting the distribution of the account balance at the death of the parent. Using beneficiary designations to pass assets to a beneficiary who is too young to properly manage or prudently spend them can result in more harm than good. The lawyers at Bredemann & Shellander PLC can help you decide if survivorship titling is right for you or who should be named as beneficiary of your beneficiary designation assets.

Probate: Separating Fact From Fiction

You may have heard that probate is expensive, time consuming and by the time it is over, there won’t be much of the estate left to distribute. However, that is not the case for most estates that go through probate. Fees for probate, especially informal probate, are modest and lawyers can only charge reasonable fees for the services they provide while assisting in a probate proceeding. Of course, expenses can escalate if there are disputes.

You may also be under the impression that probate takes a long time and that your assets will be tied up indefinitely, not reaching your intended heirs for months or years. This may be true in extreme situations but it is not the norm. One step of the probate process is giving notice to creditors of the decedent to provide them with an opportunity to file a claim against the decedent’s estate. Creditors have a limited time to file claims against the estate. Some Personal Representative are reluctant to distribute assets of an estate until the statutory claim period has expired out of concern that there will not be enough assets left after the distribution to pay creditors.

If you have questions about probate, or you want to talk to an attorney about how you can minimize the amount of assets that will need to go through probate, feel free to reach out to us at Bredemann & Shellander PLC. (LINK). Our lawyers have handled hundreds of probate cases.

We are happy to look over your existing documents or help you create an estate plan that will ensure that all of your wishes are carried out and your loved ones are taken care of when you are gone. Give us a call at 480-998-0999 to schedule a consultation.