Ed Hellekson | Baxter Criminal Lawyer

June 26,

2012

By Ed Hellekson, Attorney at Law

Who Will Take Care of Your Children and How Will Your Assets Be Divided?

If you don’t have a will, the state has made one for you.  Whether young or old, there are FOUR common reasons to have a will.  First, if you have young children, you will want to name guardians that will take care of your children should you pass away.  If you don’t have a will, the court will decide who raises your children.  Secondly, if you do have minor children, a trust should be created upon death through your will so the money does not go directly to your minor children.  You can name a trustee to distribute the assets as needed by the children for support, education and other needs, not wants.  If you don’t have a will, the child can spend the money however they wish, perhaps a new motorcycle.  Third, a will can establish a credit shelter trust.  The purpose of the trust is to exercise your estate tax exemption.  Why pay more taxes than necessary.  Fourth, and most importantly, I assume you would like to direct who gets your assets when you pass away.  If you die without a will, the court will decide how assets are split.  In certain circumstances, even an ex-spouse may inherit.  A well drafted will should address all four of these concerns.

If You Become Incapacitated, Who Will Make Health Care Decisions?

A Health Care Declaration sets forth your wishes about how you want to be cared for when you can no longer make decisions for yourself.  It can be as simple as a life-changing car accident.  What now about your quality of your remaining life?  Who is going to make a decision about pain medication or whether to have an invasive surgery that won’t necessarily prolong your life?  A Health Care Declaration allows you to appoint a Health Care Agent.  This would typically be a spouse or a family member.  A good Health Care Declaration will carefully document how you feel about certain procedures and situations, in other words, under what conditions you would want life prolonged and at what expense and quality of life.  If nothing else, a two page document will do.  However, the more detailed your wishes, the more control you have over what happens to you if you should become incapacitated.

Who is Going to Make Legal and Financial Decisions?

You need a document called a Power of Attorney to appoint an attorney-in-fact.  An attorney-in-fact is someone that you trust, your spouse or a family member, to make legal and financial decisions for you if you are incapacitated or unable to do so yourself.  Don’t make the mistake, just because you are married does not give you the power to do all transactions on behalf of your spouse.  Bank accounts, investments, property, safe deposit boxes, real estate all have different requirements.  A good Power of Attorney will allow your appointed attorney-in-fact to access assets and do legal transactions on your behalf if you are unable to do so.  You can limit the power that the attorney-in-fact has to certain actions or assets.  What happens if you have a car accident and can’t conduct your affairs?  Your loved one will have to go to court to have a guardian appointed.  It may not necessarily be someone that you trust or want to have make decisions on your behalf.  Take control now, while you can.

Your attorney should be well-versed in Wills, Health Care Declarations and Power of Attorney documents to avoid pitfalls should you become incapacitated or die.  Ask your attorney up front about the fees for the documents.  Make no mistake, it is much cheaper to have these documents drafted than having to go to court to sort things out.  Take control of your assets, your health care wishes and your children, get started today.  You may be wondering, can I just draft my own documents?  There are certainly online aids and kits you can purchase.  However, why risk one mistake that could cost you loss of quality of life, assets or increase the amount of taxes you have to pay?  I have had educated middle-class and high net worth clients make such mistakes, some of them are difficult to undo and can create higher legal costs.

Ed Hellekson is an attorney located in the Brainerd lakes area, 1 Edgewood Drive, Baxter, MN and offers free initial consultations.  He can be reached at Hellekson Law at 218-454-.

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