Monday, May 02, 2016

Dearly Beloved. . .Prince's death offers elderlaw lessons

Prince died without a will, as you may have heard. The state law of Minnesota determines who inherits from his estate, and lots of lawyers will likely make lots of money fighting over the details. Had he made it to age 60 and lived in WV he could have been eligible to talk to an attorney for free at WV Senior Legal Aid about estate planning (and other civil legal issues, for that matter).

Here are a few things you can do as a West Virginian of any age to protect yourself and your loved ones:

  1. Determine who inherits if you die without a will and get a will if that's not who you want to inherit your estate. The law of Intestate Succession is what determines who your heirs are if you die without a will. This is a matter of state law, and if you are a West Virginian when you die without a will our law from WV Code ยง42-1-1, et seq applies. Generally if you are legally married your spouse will inherit from you, and your kids may share, too, if your spouse is not their parent. There's a lot more to it than that, of course, and here's a brochure that explains it in a little more detail.

    If the law of intestate succession would leave all or some of your estate to someone you do not want to inherit from you, then you need a will. Yes, you can legally handwrite a will in WV or make your own from some fill-in-the-blank paper you get at some office store, but even though they may be legal wills they will probably fail if challenged. If you are trying to cut someone out of your will you are very unlikely to succeed by writing your own will, that's what lawyers are for. You are paying a lawyer not just for the piece of paper, but for making sure every single comma will survive a legal challenge by the disgruntled person you are cutting out of your estate. A fairly simple will costs a few hundred dollars. If it's not worth that much to you, write your own, and good luck with that, Cowboy. You won't be around to see if worked anyway.

  2. Wills and probate estates are public information after you die. Want your estate to be a totally private matter? Then you need to set up a trust. Trusts are substantially more expensive than wills, and can be very flexible planning tools that you can use to protect your assets during your lifetime as well as after you die. If you have lots of assets or perhaps a loved one with special needs who you want to benefit from you assets but with some restrictions or protections, a trust is the ticket. You may get some tax benefits, too. But don't be scared into creating a trust if you don't have lots of $ or special needs because only multi-million dollar estates are subject to inheritance tax anyway, and probate is just not usually a big deal in WV, so not worth spending thousands to avoid in most circumstances.

  3. Review and update your estate plan periodically. Things change. People die. Divorce happens. Grandkids get born. Priorities change. Your plan is may have been great when you got the documents done, but years or changes later if may actually be worse than just letting intestate succession distribute your estate. If you have done good planning don't get too complacent, pull those documents out every year or so, or anytime important changes happen in your life, and review to be sure they still reflect your wishes and asset picture.

  4. Plan for living with disability, not just dying. Almost all of us will live some portion of our lives with diminished capacity, whether physical or cognitive. We cannot predict whether or when, but if you lose your ability to make decisions about your money, your healthcare, or your life, or lose the ability to take care of yourself who will help you? You can plan in advance by executing advance directives like medical power of attorney or financial power of attorney that let you authorize people to have certain specific and limited authority and access on your behalf. If you don't plan and you lose important capacities to care for yourself it may end up in a guardianship or conservatorship hearing in court and a judge will decide who gets authority for you. Your spouse or child does not have any automatic authority for you in the event of your incapacity, that's a popular myth, so if you want to be the one to choose your decisionmaker plan now while you still can.

Want to talk to a lawyer about any of this? WV seniors 60+ can call us and talk to a lawyer for free. 1-800-229-5068.

This post was adapted from the following article by Danielle and Andrew Mayoras from


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