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What Documents Do You Need for Proper Estate Planning?

When a client meets with me about Estate Planning, after some discussion, I usually find that in order to take care of their future needs and desires they will need a Last Will & Testament, a Financial Power of Attorney, a Health Care Power of Attorney and a Living Will.

These are the documents that I personally have. These are also the Estate Planning documents I have prepared for numerous friends and family members. They are simple documents that don’t have to cost a lot of money but can properly take care of all your future needs. 

Do you need a Trust? Do you need a complicated and expensive Will?

Usually not, but it all depends on the value of your estate and certain tax planning aspects of your particular financial situation. However, for most families, the aforementioned documents take care of all their needs and insure when they become ill or pass away, their estates are properly handled. 

A Last Will & Testament is a legal document we all need. In the state of Tennessee, if you don’t have a Will, the law establishes who will receive your estate. And you may not like who gets everything you’ve worked so hard to accumulate. Take charge of who gets what, when and under what circumstances in your Last Will & Testament.

A Durable (Financial) Power of Attorney is a much needed document. Usually, if you are married, your spouse will be able to handle your financial affairs when you can’t. However, if your spouse can’t do it, then who will? You can determine who that person will be by having a Durable Power of Attorney prepared.

Of the utmost importance is your Health Care Power of Attorney. Who is able to make health care decisions on your behalf? Who do you trust to make the right decisions? You can decide that today by having a Health Care Power of Attorney prepared.

And finally, everyone needs a Living Will. Each of us has our own ideas about how we want to live and die during the end-stages of life. Make those decisions now, in legal documents that your doctor and family will be required to abide by.

Estate Planning does not have to be complicated or expensive. However, by not taking care of these legal matters on the front end, you can often cause your family to spend much more money later, trying to take care of these matters for you.

What if my family member didn’t have any Power of Attorneys, is now not competent to sign one and can no longer manage their own affairs?

Being in a position to have to ask the Court to establish a Conservatorship over a family member or friend is hard. However, often that person can not receive the appropriate medical care or state benefits, unless someone is able to step in and legally help them.

Conservatorships are set up by the Court for those that can not take care of their own needs.

There are usually two situations where a Conservatorship is needed.

A disabled child becomes a disabled adult and their parent can technically no longer make decisions for them. This leaves the parent unable to insure their child receives their state and/or health benefits. It also leaves the children vulnerable to other adults who may want to take advantage of them. 

In Tennessee, parents have the right to Petition the Court to become their children’s Conservator. The Court will review the child’s medical history and determine if a Conservatorship is warranted. If it is, the parent (or sometimes another family member) is appointed Conservator and can continue to make decisions for their children past the age of 18.

At other times, a parent becomes disabled and a family member, child or sometimes even a friend must be appointed to take care of their medical and financial decisions. Who becomes the Conservator can sometimes be a question that is to be litigated.

That law in Tennessee sets out a list of people who may be Conservator and sometimes someone on the list may not be the right person to be the Conservator. Ultimately, if there is a dispute, the Judge, after listening to proof, decides who will be the Conservator.   Once a conservatorship is established, usually a bond will have to be posted to insure the Conservator manages the ward’s money faithfully. And every year the Conservator will be required to account for the wards money to the Court. The Conservator may also petition the court to be reimbursed, each year, for the time they have spent as Conservator. They may also petition the Court to have their attorney fees and bond fees reimbursed.

The process may seem daunting but can often be accomplished within a matter of weeks and in emergencies, it can be accomplished in hours.

How Complicated is the Probate Process?

I find that many clients have heard that the probate process can be time consuming and very expensive. In other states it often can be. In Wilson, Smith, Trousdale, Macon, Jackson, Dekalb, Sumner, Rutherford, Putnam and Davidson counties, the process can be taken care of in four months and the cost is very reasonable.

You have to know what you are doing, however, to navigate this system.

Often, you can’t sell real estate you’ve inherited if the estate hasn’t been properly handled. You need Tax Clearance letters and Tenn Care waivers. You also have to insure the proper notices to creditors have run in the paper and have been mailed out.

The Probate Attorney can handle all of this for you. The Executor of the Estate is required to bring us the original Last Will & Testament and from there the attorney can take care of most everything. A Court appearance is required usually only one time for the Executor. After that, unless there are problems with the estate, most all other Court appearances are handled without the Executor present.

If there isn’t a Will, we still probate the Estate. The Court will appoint an Administrator to serve in the same capacity as the Executor would have served. In cases without a Will, the estate is divided pursuant to Tennessee law because in this state if you don’t prepare your own Will, the State of Tennessee basically prepares one for you through our law of intestate succession. And again, you may not like who ends up with your life’s earnings, so I urge everyone to look into preparing a Will.   

If you can’t find the Original Will, then we have a process for proving that the copy is the Last Will & Testament.

Wills, Trusts & Probate of Estates

Kane & Crowell represents clients when a loved one has passed away leaving an estate in need of probate. We also assist in Estate Planning such as Wills, Trusts, Health Care Powers of Attorney, Financial Powers of Attorney and Living Wills. We also can set up a conservatorship or guardianship when necessary to protect a loved one.

Estate planning is one of the most important steps any person can take to make sure that their final property and health care wishes are honored, and that loved ones are provided for in their absence. Though often overlooked or put off in favor of more immediate concerns, a comprehensive estate plan can resolve a number of legal questions that arise whenever anyone dies: What is the state of their financial affairs? What real and personal property do they own? Who gets what? Does a personal guardian need to be appointed to care for minor children? How much tax will need to be paid in order to transfer property ownership? What funeral arrangements are appropriate?

Should you have any questions, feel free to contact Kane & Crowell at (615) 784-4800. With five full time attorneys and five paralegals, there is someone always available to take the time to speak with you.