Probate, Estates, and Powers of Attorney

Dying without a will is one of the easiest-to-prevent common financial disasters, yet people do it every day, often with spectacularly bad results: the last person you would want becomes the guardian of your minor child; your ex-spouse gets your life insurance payout because you never sat down with a lawyer who would have included consideration of your divorce decree in the overall asset preservation plan; your second spouse’s child by his or her first spouse ends up with more than your own children… and so on. Compared to the cost of doing nothing, the expense of having a competent professional evaluate your situation and prepare a will that accomplishes what you want, is modest.

Wills have to be probated in court. Probate is a public process designed to ensure that your wishes are carried out and that your rightful heirs, and also creditors, are treated fairly. While probate avoidance is often a reasonable goal, the mechanisms used to accomplish it have their own risks and costs. Probate is not always protracted, costly, and acrimonious. You need to consult with a professional to determine whether you should plan for your estate to be distributed through the probate system or outside it. The important thing is to have a documented plan!

If you lose the mental ability – through age, injury or illness – to make financial or healthcare decisions for yourself, the only way your loved one can get the right to make those decisions is by petitioning to become your guardian in the Probate Court,  unless you have prepared durable powers of attorney. A guardianship proceeding is a trial about whether you are competent, and it can be costly, frightening, and humiliating. Designating a trusted person to make decisions for you when you no longer can allows you to maintain your dignity and your family’s privacy, and ensure that your wishes regarding mental health treatment and end-of-life care are respected.