Many families gathered over the holidays or for a summer family reunion, some maybe for the first time in nearly two years. Amid the inevitable discussion of the pandemic situation and maybe a little politics, one bold family member broaches the subject: “Hey Mom and Dad, have you thought anymore about what you are going to do with the ranch?  Aren’t you getting ready to retire?”

And suddenly the room becomes silent, waiting for the elder’s reply. The best scenario would be something along the lines of “Well, we’ve put an estate plan in place that takes care of our wishes and keeps the operations in the family.”

On the flip side, and more likely, is an awkward silence followed by everyone’s suggestion of “Hey, I know a guy you should talk to.”  The reality is that it can be one of the most stressful and difficult decisions a family will have to wade through.

Let’s break it down into simpler terms.

What is a foundational estate plan and how is it different than a simple will plan? 

A foundational estate plan is a comprehensive set of documents which include a Revocable Living Trust, Pour-over will, Power of attorney for Property, Power of attorney for Healthcare, Living Will/Final Directive. These take effect in part while you are alive and after your death. A foundational estate plan encompasses documents and instructions on how your assets are to be handled to take care of your spouse and then protected to benefit the next generation.

In general, any estate plan should include a last will and testament; however, is a will by itself enough? In most cases, no! A will by itself is your personal instruction to the probate judge how you want your estate divided once you are gone. Ultimately the probate court will first determine whether your will is valid or does the will warrant someone exercising a right to challenge your will in court.

Conversely, a foundational estate plan which is essentially a Trust base plan makes it very difficult for someone to challenge its validity in court unless they can prove that the Trust creator was under duress or lacked capacity at the time the foundational estate plan was implemented.

Getting started on your foundational estate plan doesn’t have to be complicated. The following are some basic questions to consider:

  • Who do you want to make medical and financial decisions when you are unable?
  • Who is the trustee (or trustees) of your Trust? (The trustee is the primary decision maker)
  • How do you want your land, ranch, property, and equipment handled after you become incapacitated or die?
  • What sort of retirement income from the business or farming operation do you and your spouse need?
  • Are one or more children (or grandchildren) going to continue the business or farm the land?

Every estate plan is unique to you and your family, and you will need to work with someone who can lead you through your options so you can effectively write your own script to protect yourself and your family. Be careful that you might want to download a canned estate plan template from the internet. Be honest with yourself here; when you are dead and gone only your surviving family members will know if the canned documents worked.

Please consider seeking out a qualified estate planning attorney who focuses only on estate planning and not everything that comes through the door to help guide you through this process.

Let’s face it, you have worked hard to build your legacy and accumulate assets to make a better life for you, your spouse, and your family. Starting these conversations are always difficult, but once you seriously engage and complete the process you will make things much easier for those you love in the long run.

So, the next time the family gathers, you can speak with confidence and peace of mind when asked if you have your estate in order.

Contact our team at BorkusLaw Group today and make a live or online appointment!

Please note that information contained in this news alert is not and should not be construed as legal advice or opinion nor does this information alert create an attorney-client relationship.

About the Author: Randall Borkus

We believe that business succession, asset protection and estate planning are less about numbers and much more about helping people preserve, protect, and provide for who and what is most important to them.