|
So InKleined
by Linda B. Klein, M.Tax., J.D., R.F.P
(Send your questions on any aspect of financial planning c/o this
publication. Please include your name, address, and phone number.)
More About Estate Planning
Paralleling the rise of consumerism in America,
"avoiding probate" has received a great deal of attention in
the popular press over the years. Because many attorneys
stand to profit considerably from representing an estate in the
course of a full probate administration, inherent conflicts of
interest exist for attorneys who prepare last wills. If you are
going to undertake any sort of estate planning, then ask your
prospective attorney for a free initial consultation during
which you can inquire into the attorney's level of expertise,
degree of experience, legal philosophy, personal demeanor,
and fee structure. As a litmus test of how likely it is that an
attorney will serve your best interests "competently" and
"zealously," assess what information the attorney imparts, at
first voluntarily, and then in response to direct questions on
avoiding probate, even for a small estate. You may wind up
paying more for good estate planning advice, but why pay
anything at all for bad advice?!!
Know that a last will does not accomplish everything
that most people assume it does, and it certainly does not
fulfill some very practical and many non-financial objectives of
estate planning. One of the most common misconceptions is
with regard to probate administration. Be advised that one of
the most basic functions of the probate court is to oversee
whatever aspects of an estate's administration are controlled
by the last will! Although some circumstances may warrant
formal judicial oversight and accountings, probate court
involvement is generally a nettlesome aspect of decedents'
estates that can easily be avoided. Court costs (primarily filing
fees) are fairly modest; but attorney fees and executor fees
are often outrageous and can at times consume all of the
assets in an estate. Further, there are some potential pitfalls in
relying solely on a last will to implement an estate plan, most
commonly that (1) the validity of a last will and its specific
provisions can be challenged more easily than that of other
estate planning tools, and (2) a last will is a public document.
For unmarried couples and in all nontraditional relationships,
these issues are frequently of paramount concern.
Overall, usually, some action is better than none at all --
to die "testate" rather than "intestate" -- because what you fail
to determine for yourself, the State does for you. Naming an
executor, naming a guardian for any "incompetents"
(someone who, because of age or functional impairment, may
avoid contractual obligations and, therefore, cannot directly
own property), and providing for the distribution of estate
assets, comprise the primary purposes for making a last will.
For the testator (the person declaring a document to be his or
her last will),
---->
|
|
