Andrew H. Hook Comments on Estate Planning Raising Different Issues for Childless Couples
Virginia Beach, VA (Law Firm Newswire) April 12, 2016 – Childless couples can face certain challenges with respect to estate planning. It may be difficult for couples to select the person who will make decisions on their behalf in the event of their incapacity and upon their death. They may also not know to whom they should leave their assets. As a result, they may fail to engage in any estate planning at all.
If there are no powers of attorney, and one or both spouses become incapacitated, in all likelihood, the state will mandate that the family file for a guardianship with the court to designate a guardian to decide matters regarding the incapacitated person’s finances and medical treatment. It can be a lengthy, stressful and expensive process. If the person’s spouse is still living and in good health, the court will likely name the spouse as guardian, but that is not guaranteed.
“Couples are advised to establish an estate plan, including a trust, which will ensure that they are protected during times of incapacity, and will enable them to leave assets to the beneficiaries of their choice,” said Andrew H. Hook, a prominent Virginia retirement planning attorney with Hook Law Center with offices in Virginia Beach and northern Suffolk.
When there is a guardianship, the agent frequently has to obtain approval from the court to make decisions on behalf of the individual, such as the sale of real estate. It would be more beneficial and less expensive to have a power of attorney.
If there is no estate plan, after the death of the first spouse, the majority of assets will likely pass to the surviving spouse. With respect to the assets for which the spouse is named as joint owner or as a primary beneficiary, those assets will transfer to the surviving spouse. Any additional assets will likely pass to the spouse through an intestate probate if the assets amount to more than $50,000.
If the estate assets are greater than $50,000 after the death of the surviving spouse, another probate will be necessary. The assets will then pass to that spouse’s heirs. However, the family of the first spouse to die will lose their inheritance.
It may be recommended for couples to create a revocable living trust, which can avoid probate and court involvement. In addition to realizing savings in both time and money, a trust can offer choices for tax planning, safeguarding of beneficiaries, and management of assets if one or both spouses become incapacitated.
Furthermore, while the surviving spouse has capacity, that spouse’s will can be amended following the death of the first spouse. If this is unacceptable, then a trust may be more appropriate. A trust will permit the assets of the first spouse to die to be applied toward the benefit of the surviving spouse. However, it will ensure that there is no change in the beneficiaries after the death of the surviving spouse.