One of the estate planning tasks that is commonly forgotten, and wreaks havoc, is the appointment of contingent trusted helpers in your estate planning documents. If you don’t have contingent helpers and your named helper is unwilling or unable to serve, your plan fails; and, court interference will be mandated.
Identifying Estate Planning Trusted Helpers
Trusted helpers are personal representatives, executors, power of attorney agents, trustees, and guardians for minor children.
Why You Need to Name Contingent Trusted Helpers
As life unfolds, things happen. People move away, develop health problems, become incapacitated, and die. Relationships change. If your named trusted helper doesn’t serve when needed (and no back-ups are named), then the court must interfere and select a trusted helper on your behalf so someone has authority to help you.
Guardianship Proceedings
For example, if you become incapacitated and no one is authorized to make medical and financial decisions on your behalf, a court proceeding called “guardianship” (or “conservatorship,” depending on your state’s terminology) is necessary.
This means that the court holds a trial, of sorts, to determine whether you are indeed incapacitated; and, if so, the court will appoint a guardian to manage your assets and make health care decisions. The guardians may or may not be family members, depending on the situation and the court’s interpretation of your best interests. If the court doesn’t feel comfortable with family members handling your finances, a local attorney may be named as guardian. This is a total loss of control.
Probate Proceedings
If you don’t have a trusted helper that will serve as your personal representative (i.e. executor) or guardians who will raise your children, the court will intervene. The personal representative and guardians may or may not be family members, depending on the situation and the court’s view. If the court doesn’t feel comfortable with family members handling your finances, a local attorney may be named as guardian. This is a total loss of control. In addition, if no family or friends go to court to get authority to raise your children, they will be placed into foster care.
If you don’t have contingent trusted helpers authorized in your estate planning documents, consult with a qualified estate planning attorney.
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