By Lorie Burch, Owner & Founding Attorney of Burch Law
Assuming you don’t need a Will, powers of attorney, and other estate planning. While legal recognition of your marriage provides you and your spouse a broad range of legal rights, no spouse has automatic rights to make medical and financial decisions, have access to medical information, inherit property, be appointed as executor, or guardian of children. Before, your same-sex spouse would not have had any legal standing to challenge family from stepping in. The big shift is NOW your spouse DOES have that recognition; however, nothing is made automatic by this decision when it comes to your estate or medical decisions, especially when it comes to children. In fact, I would argue that it is even MORE important now to have your legal documents put into place as we will deal with confusion and possible animus from financial institutions, medical facilities or even courts as a backlash to the Supreme Court decision.
Trying to do important legal planning online or with DIY Will kits. I could write a book about the dangers of people trying to draft their own legal documents. First, as highlighted in number 4 on this list, many of your assets may not even be controlled by your Will, but you won’t know how or why you’d need to make changes to beneficiaries or even bank accounts without the consultation of an attorney.
Second, the way your Will is signed is just as important as what it says. I am constantly amazed when I review Wills that were drafted through online programs and will kits that they aren’t even worth the paper they’re printed on. There are strict requirements when it comes to the signing, witnessing, and notarization for a Will to be valid. Unfortunately, usually when you find out a Will wasn’t signed properly is once someone has passed away, so it is literally too late to fix it. And the court cannot take into consideration what the Will said. Only a validly signed Will can provide guidance as to who can carry out your wishes and how you want money and property distributed.
Third, there is no guarantee that a bank, or hospital, or financial institution will recognize valid, legal documents! Sometimes certain entities such as banks or hospitals or even funeral homes will tell you that the document you are presenting is not valid. I have had to step in many times to correct misinformation or misunderstandings. The peace of mind you have by going to attorney will ensure that your documents has met all legal requirements and you have someone on your side to make sure that your wishes are honored.
Not updating beneficiary designations on life insurance, retirement, and investments. Many people do not realize that much of their money and assets will not be controlled by their Will. When you designate a beneficiary on assets such as life insurance, retirement accounts, and annuities; those designations will override whatever you stated in your Will. Therefore, it’s important to work with your attorney and financial planner to ensure your beneficiaries are up to date and worded correctly. That doesn’t mean you will name the same beneficiaries as in your Will; the point is you need advice to help guide you to best accomplish your wishes. Furthermore, you do NOT want to name minor children as a beneficiary on these assets even if you have a Will that creates a trust for them. Rather, you want to direct your beneficiary to your Will with the trust (or a living trust). Alternatively, if you do not have a Will, this is the perfect opportunity to see an attorney to draft this vital planning and assist you with the proper beneficiary designations.
Believing that a birth certificate or guardianship designation is enough for a non-biological partner or spouse to be considered a parent. Putting a partner or spouse on a birth certificate does NOT establish a parental relationship or provide guardianship for the child in the event the birth parent passes away. Legal planning such as adoptions and Wills with guardianship must be put into place. Lack of planning can leave a surviving non-biological parent powerless in the face of legal barriers and family court battles.
Not keeping legal documents up to date. Whether you’ve moved to a different state, had more children, been divorced, remarried, it is essential you keep legal up to date with changing circumstances. Now with marriage equality as well as the changing landscape of family planning, it is vital to make sure that your Will and legal documents account for your spouse as well as children, whether or not you have a legal relationship to them. Far too often, we have to go by legal documents that we know are not a person’s true intent, but it’s all we have to go by. Make sure you are staying on top of your changing circumstances and updating your legal plan accordingly.