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It's Not Too Late for New Year Resolutions

These are some resolutions worth keeping this year!

This ad appeared in the January 11, 2024 edition of The Northside Sun newspaper

Happy New Year!   
It’s not too late to consider your New Year’s resolutions for 2024! If you are making resolutions, you are with the majority of respondents of a recent survey. The top four resolutions for 2023 were to eat better, exercise more, spend less money, and take better care of yourself. Results aren’t available to determine how effective those resolutions were, but I can tell you from personal experience having the appropriate legal documents in place in the event of disability or death did not even make the list.  If you are like the majority of Americans, you have done no planning. Here, we will discuss some New Year’s resolutions that will help you to stay in control of your assets while you’re alive and well, provide for you and your loved ones in the event of disability, and when you’re gone, give what you have to whom you want, when you want, the way you want, and do it all at the lowest overall cost to you and your loved ones.

1.  Make a Financial Power of Attorney.   Everyone should have a durable financial power of attorney. This is a document in which you appoint one or more agents, and at least one alternate, to make decisions over your finances and other property in the event of your inability to act. If you become mentally disabled and have no power of attorney in place, a conservator may have to be appointed by the Chancery Court to make financial decisions on your behalf and to take control of your property, to be supervised by the court for the rest of your life. That being said, you could still need a conservatorship even if you have a financial power of attorney. In some instances, it has been necessary for us to obtain conservatorships for individuals with financial powers of attorney whose bank refused to recognize the document, or who went into a nursing home because the proper instructions were not in the document to protect their assets from having to be spent on nursing home care.  Still, having a power of attorney in place is better than not having one, but by all means, please don’t just pull a document off the internet and fill in the blanks.  If you want to increase the likelihood that your Power of Attorney will actually be honored, have a qualified attorney prepare it and help you to execute it.
Make a Health Care Power of Attorney.  If you do not have an advance healthcare directive, you need to make one! This is a document that allows you to appoint a healthcare agent to make medical decisions for you when you cannot. If you become mentally disabled and have no durable power of attorney for health care, a conservator or guardian may have to be appointed for you by the court.  Your directive should include important Health Insurance Portability and Accountability Act (HIPAA) provisions allowing your agent access to your medical records and to sign releases of those records to others.  It should also document your wishes for your medical treatment regarding end-of-life care and whether you would want your life prolonged if you were in a persistent vegetative state or not.  An attorney familiar with these documents can be invaluable in helping you understand your choices so you can make the right choice.

2.  Make a Will.   If you do not have a will, make one. But remember, a will is only good after your death and then, it must go through the probate process. Your will has two basic instructions, who gets your property, and who makes it happen. The person you appoint in your will to make it happen is your executor, who will distribute your property to those you designate.  Your will generally only governs property owned solely in your name at the time of your death which has no transfer or payable-on-death beneficiary designation. If you have property that is owned jointly with others, or has a transfer or payable-on-death beneficiary designation, that property bypasses all of the instructions in your will.  This is confusing to many people.  A consultation with an experienced attorney can help you understand these concepts thoroughly.  Also, please remember that a will is only accepted by the court if it is properly executed in all respects.  Failing to “dot your Is and cross your Ts” means the will is invalid and it won’t be recognized.

3.  Consider a Trust.   A trust is a document that is useful both during your lifetime and after your death. A trust is generally not supervised by the court, but there are many protections and benefits of trusts that are not available with a will, including protection of privacy, probate avoidance, and protections for minors, young adults, a surviving spouse who might later remarry, beneficiaries who might get divorced or need protection from creditors, beneficiaries who might need incentives to work, or disabled beneficiaries or those who suffer from addiction issues.  A trust can also effectively fund higher education costs for children or grandchildren or provide for care of family pets after you’re gone.  
Review Your Estate Planning Documents.  If you already have a will, power of attorney, healthcare directive, or a trust, they should be reviewed from time to time. Just as you need an annual health check-up, you should have a periodic estate plan check-up, preferably about every three years.  Reviewing your plan keeps you current with changes in your personal and family situation and your finances, tax, and non-tax changes in the law. Failure to properly update your estate plan may cause unintended results. These may include conservatorship or guardianship during your lifetime, or probate after death; distributions not in accordance with your goals and objectives; additional taxes; and additional administrative, legal and other expenses.
4.  Make Your New Year’s Resolutions Today.  If you do not have any estate planning documents in place, resolve to make it happen in 2024. At a minimum, you should have financial and health care powers of attorney and a will. You would also likely benefit from having a revocable living trust. If you have any of these documents in place, update them in 2024. And if you have a trust, use 2024 to make sure that the trust is fully-funded, meaning the necessary assets have been transferred to the trust, and that the trust has been designated as beneficiary on insurance policies.     

R. Kelly Kyle and Elizabeth Wynn of Kyle-Wynn & Associates have many years of experience in dealing with these matters, 
and either would be pleased to help you with these resolutions.
Call  601-978-1700 or visit www.kyle-wynn.com
to schedule your appointment.
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