What if? The importance of wills, trusts and estate planning

In this article, you’ll find answers to questions like:

1. Why should I have a will?
2. Where can I get one drawn up?
3. What other legal documents should I consider?

Palm Beach County mom Erin Molloy realized her family needed a will when her daughter was born in 2003. But her husband, Kevin, didn’t want to think about it.

However, determining what should happen in the event of her or Kevin’s death became a real issue when he was diagnosed with cancer four years later. At that point, Molloy secured life insurance and had a will drawn up. Kevin passed away in 2009, leaving Molloy with their daughter and newborn son.

In hindsight, she thinks she should have had a will and a trust drawn up to avoid probate, which is when the court oversees the management of a person's assets after their death.

“I’d recommend everyone do it before the birth of their first child,” Molloy says. “I’d start with a financial planner who can advise on insurance and recommend an attorney who specializes in estate planning. For a cheap initial step, people can see if their employer has a legal plan as an optional employee benefit.”

1. WHY SHOULD I HAVE A WILL?

A will is important because it answers the questions that are asked by the courts when a parent or caregiver passes away. It outlines the parent’s or caregiver’s directions for the care of the child or children, as well as the finances or assets for that care.

Judith Migdal-Mack, supervising attorney for Legal Aid Society of Palm Beach County's Relative Caregivers Project, advises grandparents or other guardians who are raising a relative’s child or children.

“Your most important commodity is your children,” Migdal-Mack says. “What happens if you pass away and you leave behind a minor child or a disabled adult? Who is going to step up and take care of this person? If you have money or assets, such as a home, who is taking care of the financial parts of the plan?”

2. WHERE CAN I GET ONE DRAWN UP?

If the Relative Caregivers Project assists someone with gaining custody of a family member, the program also may be able to provide that client with estate planning. The Legal Aid Society's Elder Law Project may also provide free services if the client qualifies. Others who qualify can inquire about pro bono (free) services offered by attorneys in the community. If they don’t qualify, Legal Aid may be able to provide a list of attorneys who work for a reduced rate.

Online services, such as LegalZoom, can create estate planning documents for a flat fee. But private attorney Brett Halperin in Delray Beach says an initial consultation with an estate planning lawyer is typically free and more personal.

“In many consultations that I do, I don’t make any money, and the amount of education that clients receive in that one hour can help so much, outside of drafting the actual documents,” Halperin says. “For example, most people don’t know that if they do not list beneficiaries when they set up their bank accounts, the accounts are frozen upon their death. They remain frozen and inaccessible until they go through probate. You can avoid this by going to the bank and adding beneficiaries to your accounts. Upon death, the account is liquidated, and the money goes to whomever you designate.”

3. WHAT OTHER LEGAL DOCUMENTS SHOULD I CONSIDER?

Other documents experts recommend include:

    • A living will, which spells out end-of-life decisions
    • A health surrogate, which designates who can make your health decisions if you’re incapacitated
    • A durable power of attorney, which allows a designated person to manage your accounts, from deleting your Facebook page to paying your mortgage
    • A trust, which prevents property and holdings from going through the probate process

SOURCES: 

• Judith Migdal-Mack, supervising attorney of Relative Caregivers Project, Legal Aid Society of Palm Beach County
• Brett Halperin, attorney, Halperin Law Group