Many older adults would prefer to avoid being placed under guardianship, and for good reason. The process can be expensive, possibly embarrassing, and you have little or no control over it once it has begun. Fortunately, there are ways to head off this possibility if you plan ahead just a bit. An estate planning attorney can help you take important steps to avoid the need for guardianship in the future. 

Why Avoid a Guardianship?

A guardianship proceeding takes place in open court and generally involves the introduction of evidence regarding your physical and mental health and status. These things are highly personal, and the loss of privacy alone is enough reason for many to seek an alternative. Aside from that, the person to be placed under guardianship does not have a say in who their guardian will be. This is decided by a judge who does not know you, your family members, or your preferences.

The process can become quite expensive as well. The court will continue to supervise the guardianship after it has been granted, which can easily add up to thousands over the years.

Everyone who disinherits an immediate family member has their own personal reasons for doing so. These reasons tend to fall into one of a few categories. If there is someone who would naturally inherit from you, such as your spouse, adult children, or parents if you have neither, and you do not want them to receive a part of your estate, there are a few steps you may need to take. It is not always good enough to simply omit a natural heir’s name from your will. Always tell your estate planning attorney if you intend to disinherit an immediate relative so that they can take steps to make sure your wishes are respected. 

What Are the Most Common Reasons for Disinheriting a Close Relative? 

The decision to leave a close family member who would otherwise inherit out of your estate plan can be a difficult one. However, there are numerous very valid reasons for doing so. The more common ones include: 

• Estrangement - You have not seen or heard from the individual for years and no longer want to leave anything to them as a result. 
• Needs - In some cases, it is quite reasonable to consider the needs of your would-be heirs when making an estate plan. For example, if you have two living adult children, one of whom is independently wealthy, and one of whom has significant disabilities and cannot provide for themselves, you may wish to leave your entire estate to the one who truly needs the money. 
• Prior gifts - If you have already provided significant financial support or gifts to a potential heir during your lifetime, you may want to divide your estate among others. 
• Responsibility - There might be an individual you would not necessarily trust with an inheritance. If, for example, someone closely related to you has a drug addiction, leaving them a large sum of money may ultimately do more harm than good. In some cases, using a trust rather than a will to make controlled distributions to an irresponsible relative may solve this problem.

It is important to note that there are limitations on one’s ability to disinherit a spouse. Texas is a community property state, and your spouse is entitled to keep their half of the community property no matter what you put in your will. Additionally, you cannot disinherit a minor child. Your child is entitled to receive support from both parents - you could no more disinherit a minor child than you could simply stop financially supporting them during your lifetime. 

People have a lot of different reasons for avoiding estate planning. Some are uncomfortable thinking about their mortality or the possibility that they could become incapacitated later in life. This is quite common. However, having a plan in place can actually alleviate some of the fear surrounding these things. Knowing that your loved ones will be taken care of when you are gone, or knowing that your wishes would be followed should you become incapacitated, may give you some peace of mind. 

If you have been reluctant to start the process of estate planning, now is the time. The sooner you get on board with this type of planning, the sooner you can stop worrying about it. With the help of a qualified estate attorney, the process may be faster and easier than you think. 

What if I Pass Away Without a Will or Trust?

Testamentary planning - deciding what will happen to your property when you are no longer here to enjoy it - can ease the stress on your loved ones at a time when they will be grieving. When you leave a will or trust, the process of administering your estate is likely to go relatively smoothly. However, if there is no testamentary plan in place, your family’s only option will be going through intestate probate. 

The differences between wills and trusts are sometimes a source of confusion. Deciding whether you should have a will, a trust, or both, can be difficult, and is best done with the help of an attorney who understands your situation and needs. Everything from your family structure to the size of your estate to the nature of the property you own can influence the type of testamentary documents you use. In many cases, both a will and a trust can be used in conjunction to form a strong, cohesive estate plan. Because there are so many variables at play, it is generally a good idea to work with an attorney to create these important legal documents. 

Who Needs a Will?

Those with minor children almost invariably need a will for the purpose of naming a guardian. Parents can designate the individual they would like to become their children’s guardians in the event that both parents pass away while the children are still minors. 

The major downside of a will is going through probate, which can be expensive and time-consuming. However, Texas does offer a simplified probate procedure for smaller estates. A simple will may be the most expedient way to pass along estate property for those with less complex estates. 

The term “irrevocable” frightens a good many people out of taking advantage of this type of trust. Many people are afraid of putting their assets into a trust that they will not be able to take back later, which is entirely reasonable. However, there may be less risk involved with creating an irrevocable trust than you might think. The benefits of using an irrevocable trust may outweigh the risks in a number of situations as well. Finally, there are legal means for modifying even an irrevocable trust under certain circumstances. A qualified estate planning attorney can help you determine what types of trusts make sense as a part of your comprehensive estate plan. 

What Are the Benefits of an Irrevocable Trust?

The major goal for most people who create an irrevocable trust is asset protection. Assets contained in an irrevocable trust are given a rather high level of protection against creditors, judgments stemming from lawsuits, certain taxes, and others. Those the named beneficiaries owe money to will not be able to access funds contained in the trust. Since the beneficiaries cannot make voluntary withdrawals, they generally cannot be compelled to make withdrawals to pay debts. 

Is There Any Way to Modify an Irrevocable Trust?

Yes and no. In general, you cannot revoke or cancel an irrevocable trust by its very design. However, should the situation drastically change so that modifying the trust becomes necessary, there are legal strategies that can be employed. The particular strategy that your attorney may suggest will depend on a number of factors, including the language used in the creation of the trust itself.