What started as a typical weekend night relaxing on our patio with friends turned into a deep conversation about ours and our kids’ futures. During the evening the conversation turned to living wills and guardians for our children should something ever happen to us. Of six adults (all parents) none had a will or a living will. We all had verbal agreements with family members as to who would raise our kids if we were no longer living. A quick Google search the next day showed me how unprepared I really am. So, today we are talking to Family Law attorney, Jason Kohlmeyer from Kohlmeyer Hagen Law Office Chtd. who has been practicing law for nearly two decades and represents families all throughout southern Minnesota. Mr. Kohlmeyer is a published author, public speaker and has received a number of recognitions including 2018 U.S. News and World Reports Best Lawyer “Best Law Firm” for Family Law.
What do you recommend for families to protect themselves and their assets?
If you have specific preferences about your medical treatment, distribution of your wealth and assets, or just want to make sure your children are taken care of in the event an untimely illness or death, it may be time to call a lawyer about an estate plan. Generally, an estate plan can include a Will (what happens to your assets when you die), a Trust (wealth distribution), a financial Power of Attorney, a Living Will (also known as a health care directive), and Guardianship provisions for minor children who will care for them if you pass away.
I’ll be honest, this is a difficult thing for me to think about. Can you talk to us about the process of drafting a Will or a Living Will?
It is important to note that there is a difference between a Will and a Living Will. A living will is sometimes referred to as your health care directive, which simply put, describes how you wish to carry out your medical treatment in the event you are incapacitated. These documents may also appoint someone to make heath care decision for you in the event you are unable to make those decisions for yourself. A will on the other hand, is a document that describes what you want to happen to your assets, your property and in some cases your children in the event of your death. To begin the process, you should have someone in mind who you trust to be in a position to make those decisions and what sort of guidance you want to provide them such as life-saving measures, funeral wishes, etc. There is no one-size-fits-all estate plan, so an attorney will go more in-depth on all the options available to you.
*Do you suggest everyone have some kind of legal documents in place even if they don’t have a lot of assets and what if something happens if they don’t?
One might argue that there are some stages of life where it is more critical to have a set plan in place but overall you want to protect what is valuable to you – while you have the competency and are able to make those decisions.
If something happens to you and you don’t have any legal documents in place, there are laws in place that govern what happens to an individual’s estate if they die without a Will, also known as dying intestate. If someone dies intestate, these default provisions would govern. The problem is, the default rules may not be what the decedent had intended to happen to their assets/children.
My family is blended, I have a son from a previous marriage and my husband and I have a daughter. What suggestions do you have for families like ours?
This is a very common question. The modern family is one that can include prior spouses, stepchildren, adopted children, etc. Every situation is different, and so it is important for families to talk with an attorney will take the time to understand their unique situation and provide options for planning for the unexpected.
With respect to estate planning, setting up guardianship provisions for minor children is something that you may want to strongly consider. Having a Power of Attorney, Health Care Directive, and a Will in place could spare your loved-ones some of that additional stress.
If it is a family law matter and child support is involved, take note that there will be some significant changes to the way Minnesota child support is calculated that takes effect on Aug 1, 2018.
*For couple who may be separated or drafting a parenting plan, is this something they should include in that plan?
To be clear, parenting plans and guardianship provisions are not one in the same. Parenting plans define how/when each parent is to have time with the children whereas guardianship provisions for minor child is a separate process that involves putting a plan in place in the event the worst happens.
If divorced parents prepare their list of guardians separately, it may run the risk of differing nominations that could lead to a whole new courtroom “battle of the exes”. Depending on the individuals, taking time to make a joint-decision on guardianship may save families on each side the emotional and financial turmoil. For spouses going through the process of a divorce, it is good to have a discussion on who you agree to nominate for guardianship should both spouses become unable to care for their children.
This post is merely intended to offer suggestions as to why it is important to protect your family and assets and does not constitute legal advice or otherwise create an attorney-client relationship. Please consult an attorney to obtain advice tailored to your circumstances.
Jason Kohlmeyer is a Family Law Attorney from Kohlmeyer Hagen Law Office Chtd. who has been practicing law for nearly two decades and represents families all throughout southern Minnesota. Mr. Kohlmeyer is a published author, public speaker and has received a number of recognitions including 2018 U.S. News and World Reports Best Lawyer “Best Law Firm” for Family Law.