No one likes to consider their mortality which often leads to the issue of individuals passing away without putting into place an estate plan, will, trust, or other legal documentation to distribute their assets.  Many times, people assume that they are too young to need an estate plan in place, that their assets are not worth the creation of a plan, or that getting this documentation in place is expensive.  These assumptions are in fact not true.  Obviously, the best time to document a plan to follow upon your death is far before the need to use it arises.  These plans encompass far more than just distributing your assets and tax avoidance.

Estate plans are put in place not only to be your voice upon your passing but also so that if you become incapacitated and are no longer able to make decisions for yourself that you can appoint someone to make decisions on your behalf.  If you have not appointed an individual to make choices on your behalf, then the state will step in.  If this occurs, your desires are left unknown and the state will step in to take over the process which is known as intestacy.

Intestacy rules vary from state to state.  In general, however, the distribution of assets by intestacy requires a probate proceeding.  Most families hope to avoid probate when a family member passes as it is costly, time consuming, and open to the public.  It is also frowned upon as there is no way for the state to know what your desires would have been so your assets are distributed as they see fit.

If you do not have proper documentation in place and become incapacitated a judge will decide for you who will be in charge of you and your assets.  This process is known as guardianship and conservatorship.  It can be quite an expensive for your family even if there isn’t a disagreement on your care or asset distribution.  It can often cost more than what would have been paid to have in place a proper estate plan.

In order to avoid this situation, it is crucial to take the appropriate steps which can include an all-inclusive estate plan with a living trust and power of attorney in place.  This ensures that if you become disabled or pass away the division of your assets along with your desired wished-for care are known by your family and easily executed without burdening your family.

Learn more about attorney Sean J. Nichols and the legal services he provides for clients including: estate planning, elder law issues, Medicaid planning, elder care, probate law, guardianships, and power of attorney (POA) at  To contact the offices of Sean J Nichols, call 734.386.0224 today.

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