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Friday, November 4, 2016

Estate Planning | Unique Family Circumstances


Summary: Family circumstances are more varied than they were generations ago. Many states' intestacy laws, which take control when you have no estate plan, were drafted at a time when the model represented by the Cleaver family (of "Leave It to Beaver" fame) was the dominant norm. Today, families have more diversity and, if your family does not match the model of the Cleavers, you should give very serious consideration to ensuring that you have a well-crafted and detailed plan in place. Your estate plan can ensure that you are in control of the legacy you leave behind to each of your loved ones.      

When you have a family dynamic that is outside the traditional one, you may face many challenges. One important challenge is in the area of estate planning. If you do not create a plan, your state's intestacy laws will take control. Intestacy laws were meant to mirror the predominate family dynamics. In other words, these statutes are often a poor fit for dealing with families like yours. Creating a plan can avert these potential pitfalls. and put you in control. 

Take these two examples, one from fiction and one from real life, that both involve non-traditional families. First, in a popular television drama, a man learned that he had a daughter only after the child's mother was killed in a bombing attack. Upon discovering this child, the man promptly quit his highly dangerous job in law enforcement so that he could be best positioned to parent his newly-discovered daughter.

Second, in North Carolina, a 21-year-old man's estate received a jury award of one-half million dollars due to his tasering death at the hands of police. (As a quick note, this man's sad death contains multiple estate planning lessons, including that: (1) you are never too young to create an estate plan, especially if you have (or may have) children, and (2) you should never dismiss creating a plan under the mistaken notion that you lack sufficient wealth to benefit from planning. Although this man may not have been wealthy in his lifetime, it is clear that his estate had a value of at least $500,000.)

After the North Carolina man's death, the mother of an infant child went to court claiming that her son was the deceased man's sole heir.  The man's parents, who were the co-administrators of his estate, fought this in court, denying that the infant was their son's child. Under North Carolina's intestacy laws, if the man had no children, his parents would be his sole heirs, since he also had no surviving spouse. If he had a child, then the child would be his sole heir. The court eventually sided with the parents, because no DNA testing had ever been done and the father had filed none of the paperwork required by North Carolina law to have the child legally declared his. 

These two examples represent nearly polar opposites but both have one thing in common: they clearly indicate the advantages of estate planning. With a plan, there is no need to deal with issues of paternity in the probate courts in order to distribute your assets after your death. With a carefully and properly drafted plan, you can make sure that your wealth will be distributed your way. You can include provisions that expressly leave a distribution to a child born out of wedlock. This can be extremely important because, if there is no legal documentation to establish you as a parent, this child may be legally considered to have no relationship to you and no right to inherit from you. On the flip side, planning is just as important if you wish to disinherit a child. Whether you wish to exclude a child that is yours, or avoid the risk of court battles related to children who aren't your offspring, your plan can do this. Your documents can name the specific individuals and entities whom you want to take from your estate, and state that all others receive nothing. Other than state laws blocking the disinheritance of a surviving spouse, you generally have wide flexibility in the people you include in, and exclude from, your plan. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com

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