All families can benefit from thinking ahead about the future with the help of a Hobbs estate planning lawyer. Estate planning touches on many of the most important legal and financial areas for your family. It’s crucial for families looking to create a solid future for their children and other treasured people in their lives.
A complete estate plan goes beyond the creation of wills and trusts. It can also include a living will, estate tax planning, asset protection planning, guardianship plans, and other critical preparations.
Having your estate plan ready and up-to-date can give you a sense of confidence. You can be assured that, regardless of what life has in store for your family, preparations have been made for the most likely scenarios. Put your affairs in order and earn the sense of peace that can come with it by reaching out to a Hobbs estate planning attorney. They can meet with you during a confidential consultation, with no obligation to use their services further after your first appointment.
Make the simple call that could have a huge impact when you reach out to our Hobbs estate planning law firm at (505) 503-1637 or contact us online.
When you take the time to go through with estate planning in Hobbs, you can end up with any or all of the following documents.
Your last will and testament, usually referred to as “a will”, is the official document used to transfer the property you’ve left behind after death. It can also dictate other important business, such as who you want to manage your estate in probate court (called your “personal representative”) and who you want to assume guardianship over any dependents in your care.
Every estate plan should include a will. Some estates may barely use the will, especially if they used strategies to avoid probate with the help of a New Mexico estate planning law firm. Even still, a will is the only legally enforceable way for the original owner of the estate to record their wishes for distributing their property, along with the other important information outlined above.
If you die without a will, you leave behind what is known as an “intestate” estate. The laws of intestate succession determine who inherits your property, and it may result in an arrangement that you would never have chosen yourself. In addition, dying without a will can leave your family feeling confused while raising the risk of a dispute among loved ones.
Because of all of these risks, our Hobbs estate planning law firm firmly recommends completing a will and then keeping it up-to-date as the years go by.
Your advance healthcare directive helps protect you from unwanted types of medical care in situations where you aren’t able to communicate your preferences yourself. The directive activates when you have been declared mentally incapacitated by at least two physicians (or other qualified medical professionals). Incapacitation can include situations where you are in a coma, you are put under anesthesia, or your mental capabilities have diminished to the point where you need others to provide for your basic care.
Advance healthcare directives include three primary types of documents:
Certain types of property transfer automatically without needing a will or probate. These include:
As part of estate planning in Hobbs, it is essential to review all of your accounts for the potential to use these types of transfers. They can allow for property to be transferred relatively quickly and without probate-related delays.
Your Hobbs estate planning lawyer can help you review your accounts, select transfer designees/beneficiaries, and then also arrange for backup beneficiaries in case your first choice is unable to receive the transfer.
As mentioned above, you can use your will to state your preferences for who should assume guardianship over any dependents in your care at the time of your death. You can also go a step further and draft up the needed documents to make the process of legally arranging for a guardianship transfer even easier.
Keep in mind that transfer of guardianship arrangements can get complicated quickly, especially if the original parent or guardian is deceased. The more care and time you put into setting up a possible change in guardianship now, the less likely it is that problems could arise that result in an unexpected party assuming guardianship.
You should consider who you would want to take over guardianship if your first choice dies, cannot be located, refuses their responsibility, or otherwise is unable to take over as expected. Your Hobbs estate planning attorney can help you review your options and create a succession of possible guardians, reducing the risk that someone unequipped to handle the responsibility ends up as guardian of your children or other loved ones.
As part of probate, your personal representative is responsible for paying off any debts remaining in your name at the time of your death. They must also pay any relevant taxes, including your last year’s income taxes, estate taxes, and other unpaid taxes.
You can simplify the process for them by paying off some debt now, consolidating other debts, and then setting aside the money needed to completely resolve the remaining debts, including your expected final year of taxes.
A trust is a legal arrangement that can assume ownership of your property, putting it in the hands of a trustee who can manage it for you.
When you transfer money to a trust created during your lifetime (AKA a living trust), that property leaves your estate. After you die, the trustee you named can automatically assume control over it. They can then transfer the property to your loved ones before probate has concluded. Or, the estate can hold onto the property and use it to fund investments, creating an income stream for your chosen beneficiaries. You can name yourself as trustee, with a co-trustee who can step in when you die, are incapacitated, or otherwise require their assistance.
Most living trusts are revocable, meaning you have the ability to dissolve the trust at any time. Other types of trusts cannot be controlled or revoked by you, but they can provide their own unique benefits. These include asset protection trusts. By transferring property to an irrevocable asset protection trust, it can be kept safe from creditor claims that arise after the trust is formed.
One common use of asset protection trusts is to reduce your countable resources to qualify for Medicaid long-term care benefits. If you place your assets in a Medicaid asset protection trust (MAPT) at least five years before you need care, then the state of New Mexico cannot try to reclaim the property after you die using a procedure known as estate recovery.
There are other beneficial types of trusts than these, including education trusts, charitable trusts, and irrevocable life insurance trusts (ILITs). Speak to an experienced Hobbs estate planning lawyer for information on all of the trusts available. They can provide you with tailored recommendations on which types of trusts could provide the most benefit for your unique situation.
One of the worst outcomes after a death in the family is that loved ones can end up fighting over details of the estate. There is also the risk of a lawsuit against the estate by a creditor or other party claiming an economic injury.
When there are legal claims against the estate, including will contests, lawsuits, and challenges to the personal representative’s actions, it is the representative’s responsibility to defend the estate. They have a legal obligation known as a fiduciary duty to preserve the estate to the extent possible for the sake of heirs and the estate itself. Because of this duty, this type of legal action is often called “fiduciary litigation.”
Your personal representative can hire a Hobbs probate lawyer to help them defend against claims. However, there are also a few things you can do during your lifetime with the help of a Hobbs estate planning law firm to reduce the risk of litigation while also making your estate easier to defend overall.
Outdated versions of your will can mean that certain language no longer legally applies. For example, if an heir is promised a home that has since been sold, they may be upset and allege that the decedent meant to give them something else of equivalent value to the home instead.
There may also be confusion or even anger stemming from unclear provisions in the will.
To reduce the risk of these scenarios, review your will and the remainder of your estate plan at least once every 3–4 years. You should also review it after any significant life changes, such as the sale of a home, the closing of a major investment account, a divorce, a remarriage, the adoption of a child, or the birth of a grandchild.
Make sure also to review how your accounts are set up, especially if you have closed or opened a major account since last checking in on your estate plan. Many accounts have a default beneficiary when you first open them, for example, which may be a different person than the one you would have picked yourself.
One of the easiest ways to avoid drama is to simply sit down with your family and talk to them about your estate plans. This discussion is often important for going over the arrangements you have in your will, but it is especially important for your advance healthcare directive.
Your family may try to argue against your instructions for care, for instance, if they are seeing them for the first time while you are in a coma. But if you explain to them what your choices are now and why you made them, that can help clear up confusion, along with any resulting heartache. It can also often help them arrive at the right decision for your care without the need for a court order or other types of adversarial action.
Inform the person whom you want to serve as your personal representative that you have nominated them for the role. Make sure to inform them about their obligations as part of their duties. These duties include accounting for all probate administrative expenses, contacting all heirs and creditors, providing information to those who filed a demand for notice, and exercising appropriate care to represent the interests of the estate — rather than making choices for their own benefit.
If they have any questions about the best course of action to take, you can arrange to have them contact your Hobbs estate planning lawyer. Your attorney can answer questions about the choices you made during estate planning and also provide probate services, potentially including representing the estate during litigation.
New Mexico Financial & Estate Planning Attorneys has over a decade of experience helping families, business owners, and individuals throughout the state with probate and estate planning. When you work with a dedicated Hobbs estate planning lawyer from our office, you can expect personalized service and guidance on how to best achieve your unique goals.
We are always ready to listen and to recommend the best set of estate plans for your unique family and financial situation. Make an appointment with a Hobbs estate planning attorney from our firm today by calling (505) 503-1637 or contacting us online.
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