By Emma Wunsch
With an EpiPen always in your bag, granola bars stashed in the car and the Boo Boo Buddy in the freezer, you’re the picture of a prepared parent. But you might not be as prepared as you think. It’s not something anyone really wants to think about, but it’s essential for families to have their legal papers in order in case of a real emergency. Here’s some important information from local attorneys to make sure your family truly is prepared.
Without a Will
Attorney John R. Hughes, Jr. of the Lebanon- and Claremont-based Hughes Smith Hughes and Atwood LLC says not having a will means losing a lot of control. (In the interest of full disclosure, John R. Hughes, Jr., did my will.) Without a will, a probate court will appoint a guardian for young children, the guardian will have to file a report every year and an administrator, without knowledge of your assets, will be appointed to deal with huge amounts of paperwork. All this means that your heirs will be faced with potentially hefty legal fees and up to a year in the court system. Also, your assets will be distributed according to statutes — and not necessarily to whom or when you want.
Alison M. Wells, who works with the estate planning group at Downs, Rachlin, Martin, PLLC, with offices in Vermont, New Hampshire and upstate New York, echoes Hughes when she says that many couples with young children might have already informally picked someone to raise their children in the unlikely event of something happening but, if “guardianship wishes aren’t formalized in a will, the state — not the parents — decides who will care for the children.” Wells warns that not having a will has the potential of causing contentious legal battles with children put in the middle. “Appointing a guardian in a will,” she says, “prevents all of that from happening.”
More Than a Will
In addition to a will, Hughes says everyone needs a complete estate plan, which includes a durable power of attorney, health care power of attorney (that includes a living will) and a revocable trust. He believes that the best thing for families is to have an estate plan which includes a trust. An estate plan saves time by speeding up the process by which property passes from you, at your death, to your family, friends, or anyone else you want to have it. Finally, estate planning allows you to make the crucial decisions about the disposition of your property and the care of your family. Wells adds that “trusts help manage how beneficiaries will receive money or property by appointing a trustee to help manage the assets for the benefit of the children or other beneficiaries until they reach a certain age.”
Hughes says the Internet is a good place for an education about legal terms like trusts, power of health and health care proxy. But think twice before paying a website a fee to create your will. Wells agrees that online wills can be risky. Both lawyers agree that it’s easy to make mistakes on website wills. Downloading a will online without consulting a qualified estate planner often does not account for state-specific laws that could cause the will to be invalidated.
Wells also warns of a “holographic will” — that is, a will that’s simply printed and signed at home and stuck in a safe. Without being properly witnessed, the entire will is invalid in most states — including New Hampshire and Vermont. If you’re going to pay for an attorney to check a will, Hughes suggests having an attorney prepare it. The cost will probably even out in the end and meeting with a lawyer will give you someone with whom to discuss important issues.
Cost and Time
The cost of setting up a will depends on the individual lawyer and how complicated your estate is. Most lawyers will meet for a free consultation to discuss the family’s needs. Some charge a flat fee and others charge an hourly rate. Often times an estate plan can be done in two or three meetings. Both Wells and Hughes agree that the cost of establishing an estate plan far outweighs the emotional and financial cost of your heirs dealing with probate court.
Other Lawyerly Advice
Hughes recommends carrying your lawyer’s card in your wallet so that, in the event of an emergency, authorities know whom to contact. He also advises that people let family members know that you have a will and where it is. If you appoint a guardian or give him or her power of attorney, make sure he or she is aware of it.
Wells says that even if you don’t have complicated taxes and your children are young, you shouldn’t excuse yourself from properly executing even a basic will-based estate plan. She says that having a basic estate plan when children are young will “establish a great foundation for the parent’s estate when they revisit it later in life with more a more complicated financial picture.”
Even though it’s horrible to imagine, it’s best to take a little time, do a little research and spend a bit of money to ensure your loved ones are 100% covered in the unlikely event of a family emergency.
Emma Wunsch lives with her husband and two daughters in Lebanon, N.H. She works in donor relations at Dartmouth Hillel and writes fiction in her free time.