What Is It And Why Do I Need One?
An estate plan is often thought of as something only those who are wealthy need to have so they can do something with their money and property when they die. This is ABSOLUTELY FALSE! Everyone should have an estate plan.
Why? An estate plan is a plan for the future when you can’t make decisions for yourself any longer or are no longer alive. Yes the decisions include what happens to your property and money, but they ALSO INCLUDE who take custody of your children, whether you want to be kept on life support, etc. There are many aspects of an estate plan that do more than transfer assets upon your death. We will discuss these various estate planning tools at a later time, but for now, let’s discuss why you need an estate plan in the first place.
Avoid Intestate Succession – If you pass away without a valid will in place, you are considered to have passed intestate. The State of Indiana has a default estate plan for everyone who passes away intestate—this is known as intestate succession. Essentially, it is a form of estate distribution laid out in a series of statutes in the Indiana Code. Those statutes determine the percentage of your estate particular individuals will receive, based on their relation to you. In other words, you lose complete control of who receives your assets, how much they receive and even who cares for your family.
An estate plan provides you with the flexibility to carry out your wishes as you please. For example, if you have children or relatives you specifically wish to disinherit, an estate plan allows you to do so. If you have children from a previous marriage, you may want to protect your assets from your ex-spouse and preserve them for your children through the use of a testamentary trust (discussed in the next chapter). Intestate succession does not allow you to preferentially fund care for a disabled child over healthy children. Finally, if you are in a long-term relationship but are not married, your assets may not pass to that individual at all.
Name Guardians for Minor Children – Perhaps most importantly, an estate plan allows you to name guardians for minor children, should something happen to both parents. In the absence of an estate plan, it will be up to your county probate court to determine the best interest of your children, and appoint a guardian. This decision is important to the future care of your children, and should not be in anyone’s hands but yours. Without an estate plan, a total stranger will decide what happens to your children. Is that really what you want to happen?
Beneficiary Designations – Some of your assets, such as life insurance and retirement accounts, are considered non-probate assets, which means they pass outside of your estate plan and are distributed pursuant to Indiana contract law. Other assets, such as jointly-held real property and some bank accounts, are also considered non-probate assets and pass to beneficiaries outside of your will. Without proper accounting of these assets and implementation of your estate plan, these assets may not pass to the individuals you want them to. Most estate plans will address these issues and ensure that your assets are passed on in accordance with your wishes.
Peace of Mind – There are many versions of an estate plan. Whether you use a simple will or a complex trust, the idea is that you take the decision out of the state’s hands and into your own. Furthermore, you do not create an estate plan for your benefit, you create it for your family’s benefit. Sorting out a loved one’s estate can be extremely burdensome for friends and family. That burden, coupled with the loss of that loved one, can often times be overwhelming. It is better to help your family sort out your estate with clear, well-documented guidance.
Not a US Citizen or Legal Permanent Resident?
Estate Plans are not restricted to US Citizens or Legal Permanent Residents. As an undocumented individual an estate plan may be even more important for you and your family as it allows you to document your wishes. Remember, an Estate Plan addresses what happens to your children, your property and even what you would like to happen should you be unable to make end of life decisions for yourself. It gives you a way to voice your wishes and to protect yourself and your family.
If you or someone you know needs advice about your estate plan or immigration case, please contact Griffith Xidias Law Group for a free consultation. Our phone number is (317) 236-0486, or visit us at our NEW LOCATION AT 777 Beachway Drive, Suite 102, Indianapolis, IN 46224 or at www.indyimmigrationlaw.com.
Stay tuned next month when we discuss more about what immigration relief might be available to you or loved ones.