Indiana Estate Planning Lawyer
Estate planning provides you with control of your assets and protects your family in the event of your death. It also protects you during your own lifetime should you become incapacitated. Despite its importance, the majority of Americans have neglected this important undertaking. An Indiana estate planning lawyer from Stein Law can provide these services at affordable prices.
Only 34 percent of Americans have an estate plan, according to a survey by Investment News. The survey also revealed that 37 percent have not planned their estates due to a belief that they do not have sufficient assets to warrant it. As many as 32 percent of those surveyed failed to plan due to procrastination.
While no one wants to think about their own demise, the right time to plan is when you are of sound mind and in good health. Whether something happens tomorrow or after you have reached old age, you and your family will benefit greatly from a well-prepared estate plan.
The Indiana estate planning lawyers at Stein Law can provide you with peace of mind, protection, and an opportunity to show your family a final act of love.
What is estate planning?
An estate is the balance of your assets and liabilities at the time of your death. Probate is the process of settling the estate. This includes satisfying debts, validating the will, and distributing assets.
While your estate is in probate, any assets subject to probate will be frozen until released by the court. The court will only unfreeze your assets after creditors have had ample opportunity to bill the estate for debts owed.
This process can take anywhere from a few months to several years, depending on the complexity of your estate. Any assets that remain after debts are satisfied will be divided among the heirs according to the will or intestate laws.
While you cannot prevent your estate from going through probate, you can control which assets are subject to it through careful estate planning with the help of a knowledgeable Indiana probate lawyer.
Last Will and Testament
Commonly referred to as a will, the last will and testament is a document that specifies your wishes with regard to how your estate will be divided among your heirs. If you die without a will, the probate court will bequeath your assets to your heirs in accordance with intestate laws.
The preparation of a will in Indiana requires much more than merely writing down a list of assets next to a list of names. The document must meet specific state requirements before the court considers it valid. If the court invalidates your will, your estate will be treated as if you died intestate, or without a will.
How will my assets be distributed if I lack a will?
In the absence of a will, your spouse inherits your entire estate unless you have surviving children or parents, in which case your spouse inherits half or three-quarters, respectively.
If the spouse is a second or subsequent spouse with whom you have never borne children and you have surviving children with a previous spouse, your current spouse is only entitled to 25 percent of your estate under intestate law.
Any portion of your estate remaining after it is divided between your spouse and children will be distributed to surviving relatives in order of priority as specified by the Indiana code.
State Requirements for a Will
A will is considered invalid if it is not properly prepared and executed. The will must be approved by the court and is subject to interpretation by the court. To ensure your intentions are clearly set forth, your will should be written in such a manner as to preclude your intentions being misconstrued.
Your will is valid only if it is in writing and signed in the presence of two witnesses, who must also sign the document. You and the witnesses must be competent on the date you sign your will.
While not a requirement, it is also recommended that you include an attestation, which is a statement of confirmation that you were of sound mind and that the document is your last will and testament.
If a will is validated, can the court deviate from the will?
The court may distribute assets differently from the specifications in the will under certain circumstances, such as the following:
- A beneficiary contests the will and prevails.
- An agreement outside the will signed prior to your death supersedes the will.
- Surviving children are omitted from the will unless it is obvious this was
- The share left to the surviving spouse in the will is less than the amount the
spouse would receive under intestate laws, and the spouse elects to take the
- larger portion against the will.
These are just a few instances when the wishes specified in your will may not be honored. Beneficiaries may be prevented from contesting a will if you include a no-contest clause, but the court could still find cause to allow heirs to contest.
The Indiana estate planning attorneys at Stein Law appreciate how important it is for your wishes to be honored after your death. Our attorneys can create a will that can survive these challenges. We can also help you supplement your will with instruments to guard your wishes after your death.
A trust is a legal entity to which you can transfer your assets, where they are held in the name of the trust for the benefit of your heirs. When you establish a trust, you assign a trustee to distribute the assets to the beneficiaries in accordance with the provisions set forth in the trust.
When set up correctly, a trust can shield your assets from probate. Creditors cannot collect from assets held in trust because they are not in your name. Assets held in the trust need not be listed in your will because they are distributed through the trust.
While multiple types of trusts are available, the two primary categories are revocable and irrevocable. A revocable trust can be changed after its establishment, while an irrevocable trust cannot. Irrevocable trusts offer enhanced benefits, including tax advantages. Our estate planning team can advise you of the most advantageous trusts based on the unique characteristics of your estate.
If you have children, elderly parents, or a disabled spouse who rely on you for support, you will need to designate a guardian in the event of your death or incapacity. While designating a guardian for your children may be as simple as naming a family member, finding a guardian for your disabled loved ones can be more challenging.
If you do not designate a guardian, the court will choose one for you, or worse, your disabled parent or spouse may be left without a guardian. A court can give guardians virtually unlimited power to direct your dependents’ affairs. When you designate a guardian, you have the right to limit the scope of a guardian’s powers.
Power of Attorney
A power of attorney is a document that gives another individual the right to act as your principal in the event that you become incapacitated. The designated individual is known as an attorney-in-fact or an agent. A power of attorney can only remain valid for as long as you live.
When creating a power of attorney, you have the right to determine the scope of your agent’s power. For example, you can create a medical, financial, or general power of attorney. You can also create a power of attorney that is only effective should you become incapacitated.
A power of attorney that is always in effect and remains in effect after you become incapacitated is known as a durable power of attorney. A power of attorney may be withdrawn at any time, and it can only be created when you are of sound mind.
When choosing an attorney-in-fact, it is important to choose someone you trust. A durable power of attorney may authorize this individual to make medical decisions for you when you cannot make decisions for yourself. It may allow the individual to access your bank accounts, investments, and other financial holdings.
Advance directives are written instructions about your future medical care. Advance directives give you a voice when you are incapacitated and decisions need to be made about your care. Advance directives consist of two primary components: a living will and a health care proxy.
A living will is a detailed set of instructions that inform your health care providers how to handle specific circumstances in the event of an emergency in which you cannot otherwise make your wishes known. This includes such matters as the following:
- Under what circumstances you want to be resuscitated, if any
- Under what circumstances you would wish to be placed on life support or have it removed
- Whether you wish to receive blood transfusions or other treatment
- The designation of a priest or other individuals you would like to be present in the moments preceding your death
- Individuals who should be notified if your medical condition deteriorates
- What you want done with your body after you pass away
While Indiana does not require a specific form to be used, an experienced estate attorney can provide a form that will anticipate nearly any medical or end-of-life scenario and advise you of issues that should be addressed.
Health Care Proxy
A health care proxy is an individual you designate to make decisions on your behalf when you cannot make those decisions yourself. This could be a close friend or family member who you trust. This may or may not be someone to whom you have designated in a durable medical power of attorney.
A well-planned estate can be a godsend for you and your family in the event of a sudden event that tragically takes your life, but even if you survive well into old age, you could face circumstances that drastically impact your estate.
The cost of long-term health care can be high. If a health condition results in you needing to enter a nursing home, payment for this service can be unaffordable. Medicare generally does not cover long-term nursing home stays. If your income is insufficient to cover the cost, the nursing home will collect nearly all of it.
Medicaid may cover the remaining cost of care, but after you pass away, the Medicaid Estate Recovery process will be initiated to collect as many assets as necessary to reimburse the program for its costs. If you have a living spouse or disabled child, your assets will be spared, but only for as long as they live.
Transferring your home into someone else’s name will not prevent Medicaid from recovering it after your death, even if you transfer it before entering the nursing home. However, a knowledgeable attorney can provide you with options to protect your assets and ensure the costs of long-term care are paid should the need arise.
Potential options include the following:
- Purchasing a long-term care insurance policy with built-in asset protection while you are still relatively young
- Establishing an irrevocable trust and transferring your home and other assets to it
- Transferring your real property to an heir and giving yourself a life estate
All of these options have pros and cons. An Indiana estate planning lawyer can advise you on which options will best serve your interests.
When you leave property to heirs, it may be subject to inheritance taxes or gift taxes, which are often substantial. You may be able to minimize taxation by using the correct instruments to convey your property.
What are the consequences of not planning ahead?
Ultimately, your family pays the price when you lack a well-planned estate, and you lose control of how your assets are distributed after your death. Consequently, the following may occur:
- Your loved ones could be forced to make difficult decisions about your medical care without knowing
- Conflicts about how your assets should be distributed could arise among family members.
- Your property could be tied up in probate for years.
- Your family could wind up with nothing.
- The financial impact of your death could overwhelm your family.
- Your funeral and burial wishes may be unknown and, therefore, not carried out.
When should I contact an estate planning attorney?
Since there is no way to predict when you might experience a fatal or incapacitating accident, develop an incapacitating condition, or experience a cardiac event, the time to devise an estate plan is today. People often wait to think about estate planning until it’s too late.
Do I need an estate plan if I don’t have any assets?
The idea that estate planning is only for rich people is a common misconception. Everyone can benefit from some level of estate planning, especially if you have a spouse or children. At the very least, you will need an advance directive to ensure your health care wishes are known.
You may be surprised to learn that you have more assets than you realize. If you have any of the following, they should be included in your estate plan:
- Real estate, including your primary residence if owned
- A 401k plan
- A retirement account
- Money market accounts, CDs, and savings accounts
- Investment accounts
- Life insurance policies
- Antiques, collectibles, or other valuable personal property
Having fewer assets means you have a less complex estate, which means planning should be simple and inexpensive. It does not mean you do not have an estate.
What estate planning services does
Stein Law offer?
We offer complete estate planning services, including the following:
- Power of attorney
- Advance directives
- Financial planning
- Legal advice