Whether you already have an estate plan or not, the importance of maintaining an estate plan that reflects your current situation and desires cannot be overstated. If you have not yet found the time to develop an estate plan, failure to do so can have a variety of serious consequences, including unnecessarily burdening your loved ones after your death and incurring excessive costs. If you do have an estate plan and fail to review it upon certain events, the plan may not accomplish the goals that you initially intended. An estate plan often includes, but is not limited to:
Oftentimes, when people hear “Estate Plan” they assume it includes just a will. In fact, an estate plan is comprised of much more than just a will (see above). However, drafting a will is oftentimes the best place to start. A properly drafted will sets forth your intentions as to how your property should be distributed after you die, who should be guardian of your minor children, and other significant considerations. One of the main benefits of a will is its ability to reduce potential family conflict after your death and streamline probate (the court process by which property is distributed to heirs upon death).
If you die without a will, it is called dying “intestate.” If you die intestate, San Antonio courts will determine your heirs. Typically, heirs include any children, including those from past relationships. Notably, San Antonio courts do not consider your significant other, friends, or stepchildren as heirs. Your grandchild will not inherit from you unless their parent (your child) dies before you do. In addition to identifying your heirs, the probate court must classify any property you own as either real estate or personal, community or separate. Dying intestate can be a time-consuming and costly process, with fees paid from your estate. While a will is not a method by which to avoid probate entirely, it ensures that your property passes to the individuals you select in a manner that you dictate.
Powers of Attorney (POA) and Advance Directives give another person the right to act on your behalf in the event that you become incapacitated in some way. POAs and Medical Directives can be revoked at any time and expire upon your death.
Many people with estate plans do not realize that those plans should be revisited upon major life events, including but not limited to:
When your estate value changes, consider whether you want to modify your distribution instructions accordingly. For example, if you experience a significant increase in net worth, you may want to include beneficiaries in your estate plan who might otherwise not be included. On the flip side, if your estate decreases in value, you may want to update your plan to focus on certain beneficiaries. You should also update your plan if you sell a major asset (i.e., home or business) that was a primary component of your estate, or if you acquire a major asset that is now part of your estate.
Spouses amid divorce proceedings should always plan for the remote possibility of death during the divorce process or shortly after that process has concluded. Most people do not realize that if they die during the divorce process without appropriate plans, their future ex-spouse could inherit everything. It is critical for people who are getting divorced to consider how property will be distributed in this unlikely scenario, as well as consider the equally serious implications of not updating certain estate planning documents.
Moving to a new state can impact the effectiveness of estate planning documents and lead to unexpected consequences. For example, your new state might have different requirements for a power of attorney that could render your existing power of attorney document unenforceable. There may also be differences in the laws affecting automatic inheritances by a spouse or disinheritances of former spouses. Similarly, there may be different child guardianship standards, estate tax liability, gift tax rules, and more. If you have relocated to Texas, or are planning to do so, it is important to consult with an experienced Texas attorney who can ensure that your estate plan will achieve your goals.
Major life events are not the only reason that people should review their estate plans. Over time, goals can slowly and subtly shift, and it is critical to schedule periodic reviews with your estate planning attorney to ensure that your plan continues to reflect your desires and affords appropriate protections.
If you are concerned that your estate plan no longer reflects the value of your property or your current goals, or if you have yet to create an estate plan, contact a San Antonio attorney at Kirker | Davis LLP to schedule a meeting today.