Some people hear the term “estate plan” and assume it is reserved for the ultra wealthy.  I assure you, that is not the case! Anyone over the age of 18 should consider making an estate plan. Your “estate” simply refers to your possessions – the money in your bank account, your car, your personal possessions – all comprise your estate.

There Are Three Ways To Die

No matter where you live in the United States, there are essentially three ways to die:

Intestate:

This simply means you never made a will or a trust, and you rely on the laws of the state to dictate how your assets will be distributed and who will be in charge of your  estate when you die. These may not be the people you would have chosen.

Make a Will

Most people have heard of a will and understand its basic function. Your will takes no effect until you die, and it simply allows you to choose how your assets are distributed and who is in charge of this. Contrary to popular belief, a will does not avoid probate. Your will must be filed with the probate court before any assets can be distributed. Thus, your estate will be open to creditor claims and beneficiary challenges.

Create a Living Trust

A living trust is like a treasure chest that you build during your lifetime and fill up with your own assets. You put a lock on the chest and you hold the key. During your lifetime, you can go in the treasure chest and take assets out, put new assets in, and utilize the assets any way you want. You also give a spare key to someone else, who can step up and manage your assets if you become incapacitated, or when you pass away. Unlike the other two ways, dying with a trust creates a private and seamless way to pass on your estate and avoids probate, if it is set up correctly.

Incapacity

When you are a child, all of that property really belongs to your parents or guardians. In addition, your parents or guardians make financial and healthcare decisions for you. But once you are an adult they are legally unable to handle your affairs without your explicit permission. Adults who are no longer able to handle their finances or make healthcare decisions for themselves are set up for “living probate,” which refers to a guardianship or conservatorship. However, creating Powers of Attorney, one for finances and general property, and one for healthcare, appoints someone to make these decisions in the event you cannot, thus, avoiding the living probate situation.

Life is unpredictable, and wonderful things (such as winning the lottery or selling a book and making millions) or terrible things (such as accidents or illness) are bound to happen. So, the answer is yes – you most definitely need an estate plan.

Adults who are no longer able to handle their finances or make healthcare decisions for themselves are set up for “living probate,” which refers to a guardianship or conservatorship.

In simpler terms, you want to avoid guardianship for the same reason you want to avoid probate. The real situation you want to prevent while you are still alive is anything that’s going to start the probate process early.  So if you become incapacitated and cannot handle your finances or make good health care decisions for yourself – who has the authority to make these decisions on your behalf?  Do you want a court to make these decisions?  Or would you decide on your own?

If you do not already have a comprehensive estate plan, you can end up in probate court, subject to guardianship proceedings–While You Are Still Alive. Guardianship is essentially a “living probate.” Just like probate after death, it is a public process to appoint a person to look after your affairs, and you do not get any say in the matter.

So, how can you avoid such a situation? By creating a comprehensive estate plan that includes “Powers of Attorney” for your finances, property and healthcare. You appoint the person you want to handle these matters, not a probate court judge.

What’s a Power of Attorney?

A Power of Attorney (POA) is a legal document that lets you name someone you trust to handle things on your behalf—like paying your bills, managing your property, or talking to your insurance company—if you can’t do it yourself. This person is called your “agent” or “attorney-in-fact.”

POAs can be:

General – giving broad powers to act on your behalf.
Limited – authorizing specific actions or applying for a certain time period.

There’s also a Health Care Proxy (sometimes called a medical POA), which lets someone make medical decisions for you if you’re unable to speak for yourself.

More Than Just a Signature – How to Decide Who Is The Best Fit For Your Powers Of Attorney While You Are Still Alive

When you sign a POA, you’re giving someone the keys to your financial or medical life—so you want to pick that person carefully. Here are a few things to think about:

Do they live nearby in case of emergencies?

Are they capable of handling paperwork and talking to professionals?

Do you trust them 100% to act in your best interest?

Why the Right Wording Matters

Not all POAs are created equal. You can find templates online, but many of them are too vague—or sometimes too specific. That might work fine in theory, but in real life, banks, hospitals, or real estate offices might reject a POA that doesn’t include the exact language they want to see.

I have heard plenty of horror stories where a loved one thought they were prepared, only to be told their POA wasn’t valid for a crucial transaction. That’s why having a properly written POA—customized for your situation—is one of the best gifts you can give yourself and your family.

Bottom Line

If you want to avoid the stress and expense of living probate, a solid Power of Attorney and Health Care Proxy should be at the top of your estate planning to-do list. It’s a simple step that can save your loved ones from a legal headache down the road. If you work with us, your comprehensive estate plan will include POAs for both finances and healthcare–so your plan will protect you from day one, and you will never have to worry about living probate.

If you’re not sure where to start or want to review what you already have, we’re happy to help. Give us a call and let’s make sure your plan covers everything—not just what happens after you’re gone.

Planning for a loved one with special needs requires more than just good intentions—it requires thoughtful, strategic action. Leaving assets directly to a special needs beneficiary, even with the best of intentions, can unintentionally jeopardize their eligibility for essential government benefits like Medicaid or Supplemental Security Income (SSI). That’s where a Special Needs Trust (SNT) comes in.

This powerful estate planning tool allows you to provide long-term financial support for your loved one without compromising their access to critical public assistance programs. A SNT can be created within a trust or a will, which will not become funded until after the death of the person who created the plan, or, a trust can be created and funded during one’s lifetime.

But what if YOU are the person with special needs? What happens when an estate plan was not created with a special needs beneficiary in mind? What if there is no plan at all?

(Spoiler: I handle special needs trusts for both first and third parties, which most attorneys don’t do–but more on that later.)

There are two types of Special Needs Trusts–the Third Party Trust, which is created for the benefit of someone else, and First Party Trusts (sometimes called self-settled special needs trusts), which are created by the person with special needs, using their own assets.

The First Party SNT in Rhode Island

This type of trust is funded with the assets or inheritance of the person with special needs. It is often used when the individual unexpectedly comes into money, like receiving an inheritance or a settlement from a lawsuit, so that they do not lose Medicaid or SSI benefits.

In order to create a SNT for yourself,

you must be under 65 years of age,

have a qualifying disability and the trust must be funded with our own assets.

If you are over age 65,

you may qualify for a pooled special needs trust.

You cannot be the trustee of your SNT. You must name someone who will manage the trust assets on your behalf.

Medicaid CLAWBACK provision 

A First Party SNT is subject to Medicaid payback provisions, meaning that any funds remaining in the trust upon the beneficiary’s passing must be used to reimburse the government for Medicaid expenses incurred during their lifetime

The Third-Party SNT in Rhode Island

Family members or loved ones establish this type of trust for the benefit of the person with special needs. It is commonly used to provide for the individual’s supplementary needs, such as education, transportation, and recreation. Unlike first-party trusts, there are no Medicaid payback provisions, so any remaining funds can be distributed to other heirs or charities after the beneficiary’s passing

Not Every Estate Planning Attorney Drafts First-Party Special Needs Trusts—Here’s Why

First Party SNTs did not exist until December 2016, when Congress passed the 21st Century CARES Act. Before this law was enacted, people with disabilities would often lose eligibility for government benefits due to the very low asset threshold. Thus, even attorneys with many years experience in estate planning may not have had the opportunity to create this type of special needs trusts.

Many attorneys choose not to draft first party special needs trusts because of the strict and complex legal requirements involved. Because first party special needs trusts are funded with the beneficiary’s own assets (usually from a personal injury settlement or inheritance) they must meet specific federal and state guidelines to preserve eligibility for needs-based benefits like Medicaid and SSI. In addition to being irrevocable and including the  Medicaid payback provision, First Party SNT are often subject to court approval and ongoing court supervision, depending on the jurisdiction.

Because even small errors in drafting or administration can result in loss of benefits or legal complications, many attorneys without specialized experience in public benefits or elder law choose to refer this work to attorneys who regularly handle such trusts.  I do this work myself, so I’m the type of attorney others are referring to. So if you’re reading this and you’re considering working with me, know that you’re in good hands.

Work With An Experienced Special Needs Trust Attorney

Our firm has experience creating First Party Special Needs Trusts that protect our clients’ much-needed government benefits, such as SSI and Medicaid. Because these trusts are available, clients can still benefit from their assets and continue to receive benefits. If you or a loved one would benefit from a SNT, click below to give me a call.

Inheriting real estate can be both a financial opportunity and a potential source of stress—especially when multiple heirs are involved. Deciding whether to keep or sell the property depends on a variety of legal, financial, and emotional factors. Below, we explore the pros and cons of each option, how the probate process plays into the decision, and the potential pitfalls of co-owning inherited property.

Option One: Keeping It

Real estate is probably the most common “legacy” asset, because it is a valuable asset that appreciates over time. Passing on real estate to children or grandchildren is one of the best ways to provide financial stability to the younger generations. In addition to providing a home, real estate may also provide rental income. In addition to the financial upside, the heirs may want to keep the property for sentimental reasons. Heirs typically receive a “stepped-up” basis in the property, which could reduce capital gains taxes if the property is sold later.
However, there are downsides to inheriting real estate, such as:

Upkeep and maintenance costs: Property ownership comes with ongoing expenses such as property taxes, insurance, and repairs.

Disagreements among heirs: When multiple people inherit a property, they may not agree on how it should be used or managed.

Limited liquidity: A home isn’t a liquid asset, which can be a challenge if heirs need cash to pay debts or expenses.

Pitfalls of Co-Owning Property with Other Heirs

Joint ownership among heirs often leads to logistical and legal complications. For instance, one heir might want to rent it out, another to sell, and another to keep it as a vacation home. If one heir is unable or unwilling to contribute to maintenance or taxes, tension can quickly build. All heirs typically must agree on major decisions, which can lead to deadlock.One heir may end up doing more work or paying more, leading to resentment or legal disputes.

Potential for Disputes

Inherited property is a frequent source of conflict. Disputes may arise over:

• Who gets to live in or use the property
• How expenses are shared
• Whether to sell or hold
• Distribution of sale proceeds, especially if improvements or maintenance were paid for unequally
• In some cases, one heir may need to file a partition action—a legal process to force the sale or division of the property—if no agreement can be reached.

Option Two: Sell it

Selling the property and splitting cash proceeds is a common way to deal with inherited property. A sale allows for easier division of the assets, eliminates ongoing responsibility for upkeep, and involves fewer financial risks. Any heir or heirs may buy out the other’s interests. Selling comes with its own expenses and pitfalls, including:

Emotional loss: Letting go of a family home can be emotionally difficult.

Timing the market: Selling during a slow market might mean a lower return.

Tax considerations: Although heirs benefit from a stepped-up basis, there may still be some tax implications depending on the sale price and timing.

Probate Implications

Real estate generally must pass through probate unless it was jointly owned with rights of survivorship or titled in a trust. Probate adds time and expense to the process, especially if the estate is complex or the property is located in a different state. If the heirs decide to sell the property during probate, the executor or administrator must seek court approval before the property can be sold. Selling after probate is completed is generally simpler, but still requires coordination among the heirs and clear title to the property.

Unsure Which Option Is Best For You?  Talk To An Experienced Probate Attorney

Inheriting property can be a blessing or a burden. Whether to keep or sell depends on your financial goals, family dynamics, and the practical realities of co-ownership. It’s always wise to consult with an estate attorney and financial advisor to understand your rights and responsibilities before making a decision.

A living trust is an excellent tool for estate planning. Think of it like a treasure chest – we build it and provide you with a couple of keys to the lock. But an empty treasure chest is essentially worthless. The same can be said for an unfunded living trust. Whether you have an existing trust or you are thinking about setting up a trust, don’t ignore the funding process. Funding is the number one most critical, yet often overlooked, final step in your estate planning journey.

What Does It Mean to Fund a Trust?

Funding a trust simply means transferring ownership of your assets into the trust’s name. This process varies depending on the type of asset but generally involves moving accounts, reassigning ownership of property, or designating the trust as a beneficiary where applicable. Essentially, any assets not titled in the name of the trust will not be governed by its terms, potentially leading to complications in estate administration and unwanted probate proceedings.

How Is My Trust Funded?

The method of funding a trust depends on the asset type. Here are some common examples:

Real Estate: A new deed must be prepared to transfer real estate into the trust. This often requires recording the deed with the appropriate local government authority.

Bank Accounts: Many financial institutions allow you to retitle checking, savings, and investment accounts in the name of the trust.

Retirement Accounts & Life Insurance Policies: While these accounts are typically not retitled into the trust’s name, you can update the beneficiary designation to ensure proceeds pass to the trust upon your passing.

Personal Property: High-value assets such as jewelry, art, or collectibles may need an assignment of ownership to the trust.

Business Interests: If you own shares in a business or have a membership interest in an LLC, legal documents may need to be amended to reflect the trust as the owner.

Proper Trust Funding Is Essential

Failing to fund your trust means your assets may be subject to probate—the very process many people seek to avoid with a trust. Additionally, unfunded assets might not be distributed according to your trust’s terms, leaving your beneficiaries to navigate complex legal processes and, potentially, costly court proceedings. In addition to the probate issue, an unfunded trust may lead to:

Loss of Control: The trust’s terms won’t apply to unfunded assets, meaning they may be distributed according to state laws rather than your wishes.

Increased Legal Fees and Taxes: Without proper funding, your estate may face unnecessary legal fees, creditor claims, and potential tax implications.

Ensuring Your Trust Is Fully Funded

The best way to ensure your trust is fully funded is to work closely with an experienced estate planning attorney. At JMS Law we take a comprehensive approach to estate planning, ensuring that your trust is not only properly drafted but also properly funded. Creating a trust is a multi-step process. The first step is our consultation, during which we will flush out all of the concerns and issues you have in order to create the best plan for you. We will ask you to compile information about your assets, including what the asset is, where it is located, its present value and its ownership. The next step is the plan development. We work closely with the clients to ensure all of their concerns are addressed and all of the information in the documents is correct. Next comes the final review and signing of your plan documents. Finally, we assist you in the transfer of your assets into your trust. To get the process started click the link below.

Life is constantly changing—marriages, births, new investments, retirement, and even changes in tax laws can impact your estate plan. If you haven’t reviewed your documents in a while, now is the perfect time to make sure they still reflect your wishes.

Estate Plan Spring Cleaning Checklist by Jill M. Santiago, ESQ

Review Your Will & Trusts

• Ensure your will and any trusts accurately reflect your current wishes.
• Check that your executor or trustee is still the right choice.
• Update distributions if your family circumstances have changed (e.g., new children, grandchildren, or changes in financial status).

Check Beneficiary Designations

• Review your beneficiary designations on life insurance policies, retirement accounts (401(k), IRA), and investment accounts.
• Make sure these align with your estate plan—beneficiary designations override what’s written in a will!

Update Powers of Attorney & Healthcare Directives

• Confirm that your financial power of attorney and healthcare proxy are up to date.
• Ensure the individuals you’ve named are still capable and willing to act on your behalf.

Organize and Secure Important Documents

• Gather all key documents—will, trust, financial records, insurance policies, deeds, and passwords for digital accounts.
• Store them in a secure but accessible location, such as a fireproof safe or a secure online vault.
• Let your executor, trustee, or key family members know where to find them.

Consider Tax & Legal Changes

• Have there been any recent changes to tax laws that could impact your estate?
• Speak with an estate planning attorney to ensure your plan is structured efficiently to minimize tax burdens.

Discuss Your Plan with Loved Ones

• Open conversations about your estate plan can prevent confusion and conflicts in the future.
• Share general information with family members, especially those who will have important roles like executor or trustee.

If you need assistance updating your estate plan or have questions about any of these steps, our team is here to help. Schedule a Review Session by clicking below.

We all know life can be unpredictable. Estate planning isn’t exactly at the top of most people’s to-do lists, and it’s easy to put off making a will—until time starts running out. This is where deathbed wills come in—wills that are created at the very last moment, often in stressful, emotional situations. You want to avoid this situation at all costs.

At first glance, a deathbed will might seem like a way to make sure your final wishes are honored before it’s too late. But in reality, these last-minute documents often cause more problems than they solve. From legal disputes to delays in probate, a deathbed will can leave your loved ones dealing with unnecessary stress and frustration. Let’s talk about what a deathbed will is, why it’s risky, and how to make sure your estate is in order long before it becomes an urgent situation.

What Is a Deathbed Will Anyways?

A deathbed will is a will that is created and signed when someone is near the end of life—often in a hospital or nursing home. These wills usually come about in urgent situations, like when someone realizes they never made a will or wants to change their existing plan at the last minute.  To the rest of the world this is known as emergency estate planning.

While a deathbed will can be legally valid (as long as it meets the requirements for signatures and witnesses), it is also highly vulnerable to legal challenges. And unfortunately, when there’s confusion or doubt about a will, it’s usually the surviving family members who are left to sort it out—sometimes through long and costly court battles.

4 Simple Reasons Creating A Will On Your Deathbed Is A Bad Idea

1. They’re Easy to Challenge in Court

Deathbed wills are created under intense emotional and physical stress, which makes them prime targets for legal disputes. Family members may question:

• Did the person have the mental clarity to sign a will? If they were on strong medication or struggling with dementia, their capacity to make decisions could be called into question.
• Was the will influenced by someone else? If a caregiver, relative, or friend pressured them into making changes, the will could be challenged for undue influence.
• Did the will follow legal requirements? Here in RI, like many states, a will must be signed in the presence of two non-related witnesses, and preferably, the witnesses’ signatures are notarized. If any of these elements is missing, the will is not valid.

Because of these concerns, wills created on your deathbed are much more likely to end up in court, delaying the distribution of assets and increasing legal costs.

I have received dozens of requests to make or update estate plans for persons on a deathbed. I can count on one hand the number of times I have actually agreed to do it. I did take on a client who was in the hospital and had just received a grim diagnosis. Given only weeks to live, she was desperate to get her affairs in order. Because of the travel and rush request, she agreed to pay three times my regular rate for getting the plan done. She had a lot of assets and would have benefited from creating a living trust, but because it did not look like she would live long enough to actually fund the trust we opted for a will plan. It was complicated and took two years to probate.

2. Probate Can Be a Nightmare

Probate can be complicated even with a valid will prepared in advance. But when a will is made on a deathbed, things can get messy fast.

• If the new will significantly changes an earlier version, such as disinheriting someone or giving a larger share to one person, you can expect family disputes.
• If someone believes the will was made under pressure or while the person was ill or confused, they may challenge the validity in court, dragging out the probate process for months or even years.

What should be a straightforward process can turn into a painful legal battle, leaving loved ones stuck in limbo.

Years ago I was involved in a probate court for a man who died in a nursing home a few months after having an accident. While in the facility he changed his will, omitting his only living child and giving all his assets to a family friend. His adult child contested the will, claiming he was not competent when the new will was made and that he was unduly influenced by the friend. There was some medical evidence showing there was a head injury that caused confusion. The case was tied up on court for several years and cost all parties tens of thousands of dollars to litigate. By the way, I no longer take contested probate matters!

 3. Rushed Wills = More Mistakes

A well-thought-out estate plan takes time. When someone is rushing to get a will done in their final moments, mistakes are more likely.

• Important assets might be forgotten—real estate, bank accounts, or retirement funds may not be properly accounted for.
• Key beneficiaries may be left out—this could unintentionally disinherit a loved one.
• Legal wording might be unclear, creating confusion about how assets should be divided.

Even small errors in a will can lead to major disputes later on. For example, a will can be invalidated if there is evidence to show that it is contrary to the testator’s intent. Typographical errors such as misspelled names or missing suffixes (Jr., Sr.) can lead to confusion.

4. A Will Alone Isn’t Enough

A will is just one piece of a strong estate plan. When a last-minute will is made, other crucial documents are often overlooked, such as:

• Trusts – These help avoid probate and can protect assets for loved ones.
•  Powers of Attorney – These allow a trusted person to manage finances and healthcare decisions if you become incapacitated.
• Beneficiary Designations – Many assets (like life insurance and retirement accounts) aren’t covered by a will—they go directly to the named beneficiary.

Relying on a deathbed will means missing out on these essential estate planning tools.

How to Avoid Creating A Will On Your Deathbed

The best way to protect your loved ones and ensure your final wishes are honored is to start planning now, while you’re in good health and have time to think things through.

• Make Your Will Now – It doesn’t have to be complicated! A simple will is better than none, and you can update it as needed.
• Work with an experienced Estate Planning Attorney – They’ll make sure your documents meet state laws and hold up in court.
• Review Your Plan Regularly – Life changes—marriage, kids, new assets—so using estate planning services to update your plan every few years can give you peace of mind.
• Talk to Your Loved Ones – Let your family know your plans so there are no surprises later.

Final Thoughts on Emergency Estate Planning

I get it—thinking about estate planning isn’t exactly fun. But waiting until the last moment to make a will can create more problems than it solves. A little planning now can save your family stress, money, and legal headaches later. If you’re ready to get started, we’re here to help. Schedule a consultation today and take the first step toward peace of mind for you and your loved ones.

Let’s be real, talking about estate planning with your parents can be…awkward. But it’s also super important. You want to make sure they’re taken care of and that their wishes are honored, right? So, how do you navigate this tricky topic? Don’t worry, I’ve got you covered. Here’s a down-to-earth guide to help your parents with their estate plan:

First things first: Family Huddle!

One of the biggest problems I see with estate issues is when family members feel blindsided. So, gather the troops! Obviously, your parents need to be front and center, but if possible, get your siblings in on the conversation too. Laying all the cards on the table early on can prevent a ton of drama later.

Common Pitfall: Estate plans can be challenged based on “undue influence.” Family members who are not a part of the planning discussion may feel they were cut out, or treated unfairly, and may lay blame on the one who assisted with the planning. Including your siblings in the conversation can help avoid this catastrophe.

Your Parents Need to Lead the Way

I often chat with adult children who want to set up estate plans for their parents. And while it’s awesome that you want to help, remember this: the core conversation needs to happen directly between the attorney and your parents. 

They’re the clients, and they need to be the ones making the decisions. Also, they’ve got to be mentally sharp enough to understand what they’re signing. I know, it sounds harsh, but if there’s any doubt about their capacity, things get really complicated, really fast. Trust me, you want to avoid that.

Common Pitfall: Estate plans are also challenged based on lack of capacity. Evidence that a person was not competent at the time they made the decisions about their estate plan can lead to costly court cases, which could result in wiping out the estate plan completely. Allowing neutral parties to determine your parents are of sound mind at the time they sign their estate planning documents is the best way to avoid these challenges.

On more than one occasion, I have had to ask family members to step out of our conference room so I can speak to their parents about their wishes and determine their capacity to make an estate plan. On more than one occasion, my prospective clients have told me they feel they are uncomfortable with the process, or are feeling pressured into making decisions they were not comfortable making. When helping your parents, or any relative, with estate planning, approach the conversation with empathy and respect. Don’t pressure them, rather, offer guidance, share helpful information and let them know you are there to support them at their own pace.

Respect Their Choices (Even if You Don’t Like Them)

You can’t force your parents to do anything. It’s their life, their assets, and their decisions. If they decide not to create an estate plan, even after you’ve shared your concerns, well, that’s their prerogative. You’ve done what you can.

Call in the Pros

These conversations can be tough, but they’re so worth it for everyone’s peace of mind. By gently guiding your parents, making sure their documents are up to date, and getting help from an experienced estate planning attorney, you’re helping them make choices that reflect what they truly want. At the end of the day, estate planning is about more than just money—it’s about making sure your parents’ values and intentions are respected, now and down the road.

Wills and trusts the two most common tools used in estate planning to ensure your assets are distributed according to your wishes. While both serve the fundamental purpose of passing on wealth and protecting your loved ones, these documents function in different ways and offer distinct advantages. Understanding the key differences—such as probate avoidance, privacy, control, and flexibility—can help you determine which option best suits your needs. Both a will and a trust are essential components of a well crafted estate plan. So, let’s break down wills and trusts side by side to help you make an informed decision about your estate plan.

Whether a will or a trust will work best for you depends on your individual circumstances, goals, and the level of control you want over your estate. Wills offer a straightforward way to distribute assets, are usually less expensive, but require probate. Trusts on the other hand provide greater flexibility, privacy and avoid probate court proceedings, but involve more upfront effort and cost.

People put off estate planning for many different reasons. Some may not want to think about the inevitable future of getting older and passing away. But for most people, it is just plain old procrastination. When it comes to estate planning, the consequences of procrastination can be severe, potentially leading to unintended outcomes, legal disputes, and significant financial losses for your loved ones. Why put off until tomorrow what you can accomplish today? Let’s explore the reasons to take action sooner rather than later when it comes to creating your estate plan.

Unintended Beneficiaries Through Intestate Succession

Intestate succession is what will happen if no plan is created. Simply put, you will rely on the laws of the state to pass on your assets to your heirs. One of the most significant risks of intestate succession is the possibility of unintended beneficiaries receiving your assets.

For example, I met with a person a few years ago who was going through a divorce. This was a second marriage, and this person had children from the first marriage. We discussed the need to update their estate plan now–don’t wait because it may be years before the divorce is finalized. Unfortunately, this person procrastinated, and passed away while the divorce was still pending. Still legally married, the spouse was entitled to a large portion of the estate, leaving the children confused and angry. This could have been easily avoided!

Family Disputes and Legal Battles

Without a clear estate plan, family members may disagree on the division of property, leading to expensive, lengthy, and emotionally exhausting court proceedings. These disputes can not only deplete the estate’s value but also irreparably damage relationships among your loved ones. I handled a probate estate for a man who was unmarried and had close to $1 million in assets when he died. But he had no will or trust. After two years of estate administration, his sister and brother were expecting a hefty inheritance, only to be blindsided by a son, who nobody knew existed! DNA proved the man to be the natural child of the decedent, and he walked away with the entire estate. There was nothing the rest of the family could do about it.

Probate Delays and Expenses

Lack of proper estate planning can result in a need for probate, which is typically time-consuming and expensive. The probate process can take months or even years to complete, during which your loved ones may face financial difficulties due to delayed distribution of assets they may need, and the probate process opens up your estate to legal challenges. Will contests in probate court are common, but at least when a will exists, the decedent’s intent is clear. When there is no will, and particularly, when oral promises are made to loved ones, the heirs may engage in contentious and expensive litigation in an effort to “get what they [think they] deserve.”

Loss of Control Over Financial and Healthcare Decisions

Estate planning documents not only address what happens to your assets when you die, but also what happens to you and your property if you become incapacitated. Without a durable power of attorney and a healthcare power of attorney, your family members may be forced to petition a probate court for guardianship or conservatorship over you. They may be forced to make gut-wrenching decisions about your medical care without knowing your wishes. This can lead to conflict among family members and potentially result in you receiving care that goes against your personal beliefs or desires.

Cost of Estate Planning vs the Co$t of Procrastination

One of the other reasons people put off estate planning is the cost. But the cost of procrastinating far outweighs the initial expense of working with an experienced attorney to establish an estate plan.

Probate is both time-consuming and expensive. On average, probate costs range from 3% to 10% of the estate’s total value, depending on its complexity and whether disputes arise. For example, for a $500,000 estate, this could mean costs of $15,000 to $50,000 or more, including court filing fees, attorney fees, executor fees, and other administrative expenses. Additionally, probate takes a minimum of six months, but often several years to complete, causing delays in asset distribution and potentially creating financial strain for beneficiaries.

However, by creating a comprehensive estate plan—such as setting up a living trust—can help avoid probate altogether. While the upfront cost of an estate plan typically ranges from $4,000 to $7,000 for a trust or $1,000 to $2,500 for a will plan, these expenses are significantly lower than the cumulative costs of probate. Moreover, bypassing probate spares your loved ones the hassle of navigating court proceedings during an already emotional time. Moreover, legal fees typically increase by 3-5% each year, so procrastination will always cost you more!

Don’t Procrastinate, Speak With An Experienced Estate Planning Attorney in Rhode Island Now

The consequences of procrastinating on your estate plan can be far-reaching and potentially devastating for your loved ones. By taking action now to create a comprehensive estate plan, you can ensure that your wishes are honored, your family is protected, and your assets are distributed according to your preferences. Don’t wait for a medical diagnosis or life-changing event to motivate you – the time to plan is now.

Remember, estate planning is not just for the wealthy or elderly. It’s a crucial step for anyone who wants to protect their legacy and provide for their loved ones.