Every July, the French and Americans celebrate their independence from royal tyranny. On July 14th, the French celebrate and reflect on the values of the revolution: Liberté, égalité, fraternité. Arguably, without the French alliance, America's separation from Britain would have been less plausible. Every year on the Fourth of July, Americans celebrate our nation’s declaration of independence from Britain. Yet only about one-third of Americans have an estate plan. Therefore these Americans give up their independence when deciding what will happen to them should they become incapacitated or die.[1] If you do not create your estate plan, your state will create one for you through its state intestacy laws. This year, declare your own independence and exercise your right to determine your own legacy.
As an Austin estate planning attorney, I can help you achieve your life and legacy goals on your own terms. I help parents with minor children, individuals nearing retirement, and small businesses protect and grow their assets. Through comprehensive estate, retirement income, and business succession planning, you can achieve your full financial potential.
If you have not created a plan for what will happen to your money and property upon death, your state has made one for you. If you have created an estate plan, the state will also intervene if your plan does not correctly account for all of your money and property or does not provide for backup beneficiaries if your chosen beneficiaries pass away before you. Each state’s laws may differ slightly regarding how your money and property distributes at your death. In general, if married, most, if not all, of your money and property will go to your surviving spouse.
However, if you have children who are not also your surviving spouse’s children, usually some portion will go to your surviving spouse, and the remainder will go to your surviving children. If you are a widower, your money and property will go to your children. If you are single without children, generally, your parents will receive your money and property. In that case, if your parents are both deceased, your siblings will likely inherit your money and property. The state also has laws that cover what happens if you have no living relatives.
However, most people know how they want their money and property divided after their death and to whom they want it to go. And for many, the people and relationships they want to include in their estate plan go beyond what the state’s plan anticipates. Declare your independence with a comprehensive estate plan.
George and Martha Washington married forty years ago but have no children together. Martha inherited a substantial fortune from her deceased husband. She also has two children from her previous marriage. George has nine siblings and is very close to his nieces and nephews, treating them like his own children. However, George has been so busy fighting wars and running the country that he has neglected to create an estate plan. Upon his death, all his money and property, including Mount Vernon, go to his wife, Martha. Upon her death, she leaves all her money and property (which now includes George’s money and property) to her two children. George’s nieces and nephews, who were like George’s own children, receive nothing. This is not what George would have wanted.
If you have not appointed someone to make financial decisions for you, if you become incapacitated and cannot make those decisions yourself (by creating a financial power of attorney), or your chosen person is either deceased or unable to act, the state’s plan commonly requires that a court appoint someone to make those decisions for you. Whom the court appoints is generally based on who has priority under the state’s rules. Usually, the spouse has priority, followed by an adult child and then a parent. However, the person with priority may not always be the person you would have chosen. Declare your independence with a well-crafted financial power of attorney.
Thomas Jefferson’s pride and joy is Monticello, the hilltop home and gardens he designed. Thomas is single. His wife of ten years died in childbirth many years ago, and he never remarried. The couple had six children, but only two daughters survived. After completing two terms as President, Thomas retires to Monticello, where he suffers a stroke, leaving him incapacitated.
Unfortunately, amid all his accomplishments, he did not accomplish creating a financial power of attorney. He appointed his daughter Mary to manage his financial affairs. Mary is relatively inexperienced in financial dealings, and Thomas would have chosen his good friend James Madison to be his agent under a financial power of attorney. Because of the pressures of significant debt, Mary sells much of Thomas’s property, including Monticello, for less than market-value prices. This outcome might have been much different if Thomas had appointed James Madison by executing a financial power of attorney.
If you have not appointed someone to make medical decisions for you, if you become incapacitated and cannot make such decisions yourself (through a medical power of attorney, advance health care directive, or similar document), or your chosen person is either deceased or unable to act, the state has laws about who has priority to make those decisions for you. The priority order usually includes someone a court has appointed, a spouse, a child, a parent, a sibling, a grandchild, and so forth. Again, the person with priority may not always be your chosen person. Declare your independence with a carefully drafted health care power of attorney.
Benjamin Franklin has three children and a common-law wife, Deborah Read. One of the children is Benjamin’s from a previous relationship; the other two are Benjamin’s and Deborah’s children. Benjamin also has eight grandchildren. Benjamin falls into a coma after lightning strikes. The family disagrees on whether they should permit the sustaining of his life. The law does not recognize Deborah as Benjamin’s wife. As such, she does not necessarily have priority in making healthcare decisions for him. Benjamin could have avoided this family drama by creating a document naming the person he wanted to make medical decisions for during his incapacity.
This year, choose to celebrate Independence Day by taking steps to put in place or update an estate plan that will allow you to claim control of your and your loved ones’ futures. We want to help ensure your family does not go through the same unfortunate events as in our fictitious examples above. Contact us today so that we can help.
[1]Lorie Konish, “67% of Americans have no estate plan, survey finds. Here’s how to get started on one,” CNBC, https://www.cnbc.com/2022/04/11/67percent-of-americans-have-no-estate-plan-heres-how-to-get-started-on-one.html
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