What Went Wrong?

electrical mistake

Recently I received an email from a client asking me what went wrong in her parent’s estate plan so as to make it so that they had to go through probate. She asked, “isn’t the purpose of getting a trust so you don’t have to go through probate? Everyone tells me to get one so that it is easier, but my parents had a trust and this hasn’t been easy at all”.

Her’s is a valid question. Her parents set up a revocable living trust (not with me) and took care to make sure their real estate was titled in the name of the trust as well as their bank accounts and most other property. They even went so far as to designate their trust as a contingent payable on death beneficiary in case they happened to die together. They thought that it was as turnkey as they could make it. Why then is she having to deal with probate?”

In a very long email, I responded to her question. The problem was one of timing and failure to act quickly. What had transpired was the following:
Her Dad passed away and the investment account was ready to make a payout to her mom who was the payable-on-death beneficiary. Her mom, however, for reasons not yet clear to me, failed to present the claim to the investment company. Shortly after her Dad passed away, her mother passed away too. The investment company was directed to make the following payouts: 1st to mom, and if mom predeceases Dad, then to the family trust, and if mom predeceases dad and there is no family trust, then to children equally.

At first glance, a casual observer might think, well Mom has passed so that means that the trust should get it, no probate no mess, just a clean transfer, but a more careful reading demonstrates that it is not so simple.

Pay Attention to the Timing

Desk Calendar

The investment company is in a bit of quandary. They had an obligation pay a substantial sum of money to a dead person. If they cut the check, no one will be able to cash it. The decedent is no longer able to sign it. Even if someone had a financial power of attorney (which they did) it is ineffective because all Powers of Attorney expire at the death of the principal. Had Mother redeemed her claim of the death benefit she would have received it quickly and would have probably deposited the money into an account owned by the trust. Because this didn’t happen, mother’s estate has ended up receiving the amount and not the trust.

Utah’s Small Affidavit Limit $100,000

Cash box

Utah’s small estate affidavit limit is set at $100,000. This means in order to take possession of property, a duly appointed personal representative has to ratified by the Court before third parties can distribute the property without incurring liability for a wrongful distribution. This can be terribly frustrating for an heir and I am sure that the decedents are rolling over in their graves to think that they tried to make it easy but it is still going through probate. In addition to the $100,000 trigger, any real estate has to go through probate as well.

My client’s mother failed to claim her death benefit before she died. The investment company was obligated to pay my client’s mother and even though there was a plan in place for a contingent beneficiary, the contingent beneficiary was unable to inherit because her benefit vested first, which in turn, necessitated taking the estate through probate Court

What Could Have Been Done?

The first lesson we take away from this is, don’t delay claiming any death benefits that are owed to you. If you are unable to claim them or pick them up (maybe you are moving and don’t know where to send the check yet) then contact the investment company and provide for a contingent beneficiary if you fail to live long enough to receive them. Your health will determine how big of a risk this is for you, although accidents can happen at any time.

The second option would have been to switch the order of the beneficiaries. First to the trust and if the trust has been dissolved, then to the mom/wife and if the wife/mom has predeceased, then to the kids equally. Had this order been observed, the investment company would have had no problem cutting a check to the trust. Typically, the surviving spouse will remain a successor trustee after the death of the first spouse and can use the trust assets for his/her benefit. If the surviving spouse dies before the claim is presented, then the successor trustee can receive the check just as the original trustee.

Some revocable living trusts place restrictions on the use of trust property after the death of the first spouse. The reason for this is to maintain eligibility for the unified gift tax exclusion. This might be one reason why the beneficiary schedule was set up the way that it was. Currently, the gift tax exclusion is so high that it removes the need for the limitations imposed by these trusts, which brings us the third and final takeaway: after a life-changing event, review your estate plan with your attorney. He or she will be able to advise you on the time sensitive steps (if any) or new risks you need to be aware of due to the changed circumstances.

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How Not To Draft Contracts

Recently, a client wanted me to look over a “right to cancel” clause for the installation of energy saving feature for his home. My client is a smart person and typically doesn’t have any problems in reading/understanding contracts or “legalese”. He emailed me the following two paragraphs:


12. [Company’s] EXPANDED RIGHTS TO CANCEL. BECAUSE [COMPANY] CARES SO MUCH ABOUT IT’S CUSTOMERS, IN ADDITION TO ANY STATUTORY RIGHTS YOU MAY HAVE TO CANCEL THIS AGREEMENT, AS A [COMPANY] CUSTOMER YOU MAY CANCEL INSTALLATION OF THE SYSTEM OR (II) APPROVAL OF FINANCING ASSOCIATED WITH YOUR PURCHASE OF THE SYSTEM AND/OR AN INTIAIL DISBURSEMENT OF LOAN PROCEEDS RELATED THERETO. Notwithstanding the foregoing expanded rights to cancel this Agreement, in the event you agree to have complimentary or appurtenant equipment (“Complimentary Equipment”) installed by [cOmpany] or its affiliate prior to the commencement of the installation of the System, upon the commencement of the installation of the Complimentary Equipment you shall no longer have a right to cancel this Agreement, other than as provided in Section 11 hereof. As examples rather than to provide an exhaustive list, the term “Complimentary Equipment” may include equipment and technologies such as sprinkler system monitoring equipment and HVAC monitoring equipment.

After reading through the two clauses, the fact that my client had a hard time understanding what they meant was not surprising at all. When I read it, I could find two or three reasonable interpretations of the clauses that each would have very different outcomes.

Section 11. is pretty straightforward. It is a good clause that describes in a concise manner at which time your right to cancel expires in a normal agreement. I can tell that section 12. was drafted by someone completely different. Section 12 is wordy when it doesn’t need to be wordy, it tries to tell a story when there is no need to tell a story, it isn’t consistent in the use of words that ought to cover the same thing, and it reads like a couple of very long run on sentences that make it hard to read.

Let me explain myself. I have uploaded a document that shows which phrases are problematic and the document can be accessed here. The real problem with this clause is that the words, “Agreement” and “Installation” being used interchangeably. The title says right to cancel the agreement, but the clause talks about rights to cancel the “installation” and “approval of financing” or “initial disbursement”. This confuses the rights given. Do you have the right to cancel the agreement or do you have the right to cancel the installation, disbursement, and approval?

Signing a contract

In addition, the drafter could have just started with the words, “You may cancel…” everything prior to those words are fluff and are not relevant. The additional language serves to confuse and tell a story which is not the correct function of a contract.

When you are reading a contract, think to yourself, how much of this is “noise” and how much of this actually defines a right or a duty under the contract? Nearly all of the language should go to define the rights and duties of the contract.

I want the takeaway from this to be, contracts are only functional if they are understood by both the parties. To the extent that they confuse, make ambiguous, or leave lots of room for interpretation or rely on “implicit” meanings, they become more and more vulnerable to undermining their purpose. In general the populous would be better served with contracts that had shorter sentences, less legalese, and focused on the rights and duties of the parties.

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The Hardest Part of Estate Planning

Our firm never says that estate planning is easy, the degree of intellectual rigor and self-reflection is often misunderstood by those who are doing it their first time. There are several “decision makers” in an estate plan. These are people who will fill various roles in the event of the incapacity of the planners (hereinafter, “Principals”) or at their passing. In a typical estate plan, the principals will need to decide who their first choice is for these roles and usually a second or third in case their first choice is unable or unwilling to take the role. The following roles will typically need to be filled:
Business Man Confused

  • Successor Trustee – Person who will take over as Trustee and either manage the trust assets or distribute them when you have passed.
  • Personal Representative – Person who is responsible for the safeguarding and distribution of all non-trust assets after you have died.
  • Health Care Agent- Person who is authorized to make medical decisions for you in the event you are incapable of doing so.
  • Financial Power of Attorney- Person who is able to access, manage, and otherwise do what you could do with your financial assets.
  • Successor Guardian- Person who you nominate to replace you as a parent of any minor children in the event that you are no longer able to do so.

These are big decisions often times these are the hardest decisions of the principals. Some Principals are fortunate enough to have many choices including family and friends that not only do they trust but who are also competent to fill these roles. Other clients, I have helped have recently moved here and one of their biggest fears is that when they pass they will not be discovered for a month because they do not have regular social engagement and no one would even think to check on them. Still, others have recently moved here and all their family and friends are in a different state.

One of the hardest positions to fill is that of a successor guardian of minor children. When our clients have to make a decision on who should raise their kids if they are unable to, there is often a long moment of silence while the client mentally thinks of the available candidates and one by one crosses them off. There are so many considerations, geographical locations, the current size of the candidate’s family, parenting style, financial ability to pay for additional costs, etc. Not only does the principal typically have to wrestle with their own high standard for replacement parent qualifications, but they also have to reconcile them with that of their spouse.

The difficulty of these decisions perhaps is a contributing reason why many people wait until they are empty nesters before getting an estate plan. The irony in this thinking is overwhelming, shouldn’t those who have the biggest reason to make an estate plan create one before those with lesser reasons to do so? I couldn’t count how many times I have heard young couples with children say to me, “we don’t need any estate planning we don’t have anything to plan for”. I just think to myself, there is a greater need for public education regarding what estate planning actually is. In a former article, “Your Kids Might be Headed for Foster Care and You Don’t Even Know it” I discussed what happens to children whose parents who suddenly pass that have neglected to plan.

hand with cash

The question of who to select as a successor guardian is probably the toughest one, but your selection who will be your successor trustee, health care agent, and financial power of attorney can be very difficult as well especially if you have a contentious family. Who will be the best at keeping the peace while at Nurse's Hatthe same time can handle the scrutiny of other family members and carry out your wishes. Who is organized enough to jump through the hoops it takes to wind up an estate? Who can spare the time? Family dynamics are fascinating to me. There are certain times when family dynamics are more evident than others. The distribution of an estate is certainly one of them. Parents/Principals have to wrestle with these dynamics as well as the practical considerations of location and availability as well.

Here at the firm we can guide you through this process, and give examples of what others have done. We may even be able to create something new that fits your family dynamics better, but the hardest part of estate planning—the decision discussed above is ultimately up to you.

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Trouble in Far-Far Away

Coincidentally or not, when I visited Mr. Visser’s class on constitution day the Kingdom of Far-Far-Away was in an upheaval over the trial the century. Cinderella’s Step Sisters finally had to face the music for their alleged mistreatment of Cinderella.

picture of trial of step-sisters

It all started when the prince, heard of the abuse and charged the stepsisters with, “being mean” which was punishable by up to 5 years imprisonment in the dungeons.

However the kingdom in far, far away are not savages, they held Court on this issue and I was selected to be the judge and the fair-minded students in Mr. Visser’s class elected to be jurors, defense attorneys, and the prosecution.

Ultimately, the jury found the stepsisters “not-guilty” of being mean and when pressed for the reason of their verdict, they said that it was when the Prince was forced to admit that he didn’t actually see the Step-sisters being mean to Cinderlla then they had reasonable doubt.

Other notable utterances during the trial was when the prosecution asked the Prince whether or not he thought Cinderella was “cute” and the Judge had to remind him he was under oath. Pure pandemonium broke out and it took several minutes for me to restore order after the Prince went bright red and failed to deny.

It was a great experience and I appreciate Mr. Visser and his class for allowing me to come in.

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Why Not Just Do It Yourself?

typical DIY

Why Should I Hire You?

Recently, I had a wonderful family in my office. We talked about estate planning, the difference between a will and trust, and the importance of planning ahead. After our discussion, the mother turned to me and said, “excuse me for the question, but why should we hire you as opposed to doing this ourselves?” I have had this question posed to me several times and it is not new.

With the abundance of self-help and informational resources out there, I think that it is becoming an increasingly legitimate one as well.

The truth of the matter is, is that most people have this nagging feeling to get their estate planning done, but keep putting it off. Conversations about death and distributions are not easy. It takes some thoughtful consideration especially if parents are not on the same page. In brief, intellectually it is hard.

It is possible for someone to learn enough about estate planning to set up their own. It is also possible that they do it successfully. Just like it is possible for people to work on their own car, fix their own leaky pipes, and give themselves stitches. It is even possible that everyone stop frequenting restaurants and opt to make all of their meals.

You Probably Could

If people are able to get through the first step, then to research and figure out how the documents should be drafted, and the difference between a power of attorney and a guardianship, and why use a Trust, the difference between a Personal Representative, an Executor, and an agent for a Power of Attorney, and what who should serve in each role. In reality, I am biased towards people being able to figure it out themselves, because when I think about it I overlook all the background and learning I have already done so that I am proficient.

I, myself, am guilty of the same attitude. Especially when it comes to car repairs. I have always enjoyed working on my own cars and repairing them. The problem is, is that I don’t usually have the right tools, for the job. I then use that as an excuse to buy more tools as I attempt to fix it. The last repair I replaced the cv joints and the struts in my car. I watched a 10 minute Youtube video to replace the cv joints and a 7 minute Youtube video on how to replace the struts. I went in thinking, ok I am not a repair guy, it took them 17 minutes to replace, it will probably take me an hour. I started on a Saturday morning at 8 am so that I could finish before breakfast. What happened next was fairly typical of my car mechanic exploits.

The Cost of a DIY Job

I finally got done about 8 pm at night (not to mention the 1/2 hour shower I took to try and clean up) and I had worked straight through with no breaks or eating. I even employed my neighbor (another amateur mechanic) for a couple of hours and a couple of his tools as well. The same could be said of estate planning, you could spend countless hours trying to figure it out and end up a mess like I was. The difference​ is that you wouldn’t know if it was a mess or not until it is too late. The benefit of car repair is that your car won’t work unless you are successful, in contrast, estate planning may only be felt by your kids after it is too late cheaply repair it. My wife has been uneasy to drive the car ever since. She just got back from a trip to Fillmore and before she left she asked me three times, “are you sure the car is ok”?

I am not saying that a DIY (do it yourself) attitude is a bad thing, I think we could do with a lot more of that as a society, but there is steep learning curve in estate planning and if you are unable to determine the quality of your efforts until it is too late, that is a gamble that should not be taken without some serious thought.

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Thank You Sharry for your Example

Picture of Jared and Sharry Buhanan Decker

Late Thursday afternoon, one of Lindsay’s (my wife) best friends from childhood called me as I was getting home from work. I had just pulled into the driveway and when I saw the caller ID. I was surprised. Sure, I knew and liked my wife’s friend, but she doesn’t call me, she calls my wife. Then I realized that my wife probably wasn’t answering because she was up in the mountains camping with a youth church group. “Wes” she said in a quivering voice, “I have some bad news”. Immediately I thought of another of Lindsay’s childhood best friends who was due to have her baby that weekend. “Did Sharry lose the baby?” I asked. She said, “No, Sharry passed away during child birth. Her heart stopped during an emergency C-section (later it was discovered that she suffered an amniotic embolism). I have been trying to call Lindsay, but she isn’t picking up.”

I was at a loss of words. I didn’t think that those things happened anymore. Mothers rarely die while giving birth especially when delivering at a hospital. Not only was the news hard to hear, I had to relay that to my wife. I immediately thought of her husband. This would be absolutely devastating.

Sharry Buhanan-Decker led an incredible life. She was what might be termed a renaissance woman; a talented musician, artist, writer, and person. She and Jared spent much of their time together serving those less fortunate than themselves. For those who would like to support her husband, Jared, financially at this time, there is a gofundme account set up for them here.

In addition to her talents, Sharry had more foresight than any other person I knew. When i listened to her husband talk at her funeral, I was amazed to learn about the amount of content that she created for her family before she died. She wrote a touching letter to her unborn son the day of his due date about her aspirations for him and how excited she was meet him. She was in the middle of creating memoirs of her life. She had just updated her bucket list that included, “save someone’s life:, and “become an angel” (two items she checked off on her last day). She had just uploaded multiple videos of herself on YouTube singing songs while playing the guitar, and had hidden several “notes” to her husband around the house. She had even written Jared’s (Sharry’s husband) Eulogy describing her sentiments about him and the life they were sharing. I can’t help but believe that her efforts to provide/create this material was divinely inspired.

I am sure that her efforts will be greatly appreciated. Their baby boy will undoubtedly return to her letters, memoirs. songs, etc. for comfort. Instead of a mother that he never knew, he will have a mother that inspires and gives confidence. I am positive that given the choice, her husband and child will be more grateful for Sharry’s preparation than anything that I could ever do as an estate planner. The most important gifts that we can give our heirs is not one of convenience and probate avoidance, but those gifts that only we can uniquely give. Lessons in life come from surprising events. I am grateful for Sharry’s example and friendship. I know I will be a better person and estate planner because of it.

Your Kids Might be Headed for Foster Care and you don’t even know it.

kids by window

Lately I have been getting several people telling me something like this, “I don’t have much in the way of assets or money, so do I even need to worry about estate planning?” This post aims to answer that question for parents. Parents need a plan for both death and incapacity. If you are a parent and your child is under 18, then this is directed to you.

The Cold Reality

Let me ask you parents a question, “What would happen to your child or children if you died in a car accident today?” Unless you think that your child is better off in foster care or the custody of the State, then you need to something about this. If you don’t have a plan then, you might as well get used to the fact some stranger is going to tuck them in at night if something happens to you. If strangers tucking them in after your death doesn’t appeal to you, then take heart because creating a plan that will spare your children from being wards of the state is achievable without undue time or expense.

A Designation of Guardianship is a short legal document wherein you get to decide who will become Guardians of your children in the event that you die. Within this document you can set-up temporary and permanent guardians in the event that the Permanent Guardian doesn’t live nearby and you need someone who can take custody of your children until the permanent guardian can make arrangements to receive custody and guardianship.

It Could Happen to Anyone

picture of beach with chairsPicture this scenario, you and your husband are off on a cruise and either by storm, accident, or by local guerrillas you die. You have left your baby-sitter at home with adequate instructions and specific time for you to return. At some point your sitter is going to call the police, he or she will need to return to their life and will be concerned about you while trying to keep your children calm and answer those questions. If you left a temporary designation of guardianship, then the sitter will be able to leave the children with that person, if there is no designation or guardianship, then the Police will have no choice but to remove the children from the sitter’s custody and place them in the foster care system. Not even grandparents will have a right to remove them from the State’s custody without having an official Guardian appointed by the Court. Meanwhile your children will be living with strangers (often separated from each other) speculating what is going on with their family.

The above situation seems unlikely and it is probably is. But what is even more likely than that is ever day life. Maybe you get into a car accident, and you don’t die, but you are put in a coma. Incapacity can necessitate a guardianship just as easy as death can. This is not what you want for you children. This is not what your Children want for themselves. This situation is completely avoidable! For parents with minor children, a designation of Guardianship will probably be one of the most important documents that they have.

Picture of Family Playing

Completely Avoidable

The hardest part about setting this up, is the mental effort required to choose a guardian for your children. These are hard decisions and should take some serious thought. After you have selected a guardian you need to gather contact information for those guardian(s) and finally draft the documents. This instrument is absolutely necessary if you have any children and is surprisingly inexpensive. If you are a parent of a minor child and you can only afford one thing, start with the designation of Guardianship and build from there.

If you are concerned about this issue schedule an appointment online now to see how easy it is to keep your children with those you trust if something happens to you.

Celebrating Wellness Expo Applebee’s Gift Card Winner

Healthy Living Fair Raffle Winner: Anne Murphy

Picture of Wes With GC Winner Anne Murphy

I would like to thank everyone who made it out to the Celebrating Wellness expo at the Senior Center this year. It was good to see a lot of you there and meet a lot of really cool people. It is a great event every year and the proceeds go to help fund the Meals on Wheels initiative. Anne Murphy was our lucky winner of the $25 Applebee’s gift card. Thanks Anne and Congratulations! I will be raffling off several other items at the What Women Want Expo and All About Baby Expo coming up. Stop by my booth for a chance to enter.

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Why a Health Care Agent wins a Guardian Every Time

Picture of a stethoscope

Guardianship vs. Advanced Health Care Agent in Utah

One key instrument in any estate plan is plan or the documentation designating another person to make medical decisions on your behalf if you are unable to do so or if you are mentally impaired. In order to achieve this legally, an agent needs to be able to act on your behalf. The state of Utah has afforded a person two different ways to accomplish this; a Guardianship or an Advanced Health Care Agent.


A guardian is a person or institution appointed by a court to make decisions about the personal well-being (residence, health care, nutrition, education, personal care, etc.) of an incapacitated adult.

Health Care Agent

A Health Care Agent is appointed by an individual (rather than a court) to make health care decisions in the event that the individual no longer has the capacity to do so. The agent should be someone the individual can trust, who knows, understands, and will honor the individual’s preferences, and who will be available if needed.

So What is the Difference?

Fundamentally they work the same way. A person who is a guardian has the same rights and powers over the incapacitated individual (ward) as does the Agent unless the Court limits those powers for some reason. Guardians are appointed by the court (not the person or family) after incapacitation. This is helpful when a person has not prepared health care documents in advance, but may not end up the way an incapacitated individual would have wanted. Health Care Agents are chosen by the individual while an individual has sufficient mental capacity. This allows a person to make decisions well in advance without the need for court appointment.

There is a major difference with respect to timing, speed to decision making, and the execution of the ward’s (incapacitated person) wishes. Everyone who is over 18 has to have either an Health Care Agent, or a Court appointed Guardian in order to have someone make major health care decisions on their behalf. This means that even spouses do not automatically have the legal authority to make these decisions for another without the proper work done.

The process between securing a Guardianship versus appointing an Advanced Health Care Agent are radically different. In order to appoint an agent, you need the proper paperwork drawn up and then have the individual sign the Advanced Health Care Directive in front of two witnesses who are not related or stand to benefit from the death of the individual. This process can be done in a day and would involve only one attorney if any.

In order to get appointed as a Guardian you have to open up a case with the Court by Petitioning the Court to issue the Guardianship. After the Petition, the petitioner (person seeking the guardianship) will have to serve notice on all interested parties (close relatives and the proposed ward), wait for a hearing, and finally go the hearing to have the Court issue the Guardianship. This process if streamlined may take a month, but could take 3 or 4 and potentially years if there are any disputes by the individual or the other relatives. In Utah, the proposed ward will have to have an attorney represent them as well, and there may even be a 3rd party Court Visitor involved if the proposed ward is unable to attend the hearing because of a physical limitation. The Court likes to see Doctor’s reports and can take testimony on the issue prior to issuing the Guardianship. After everything is said and done, the incapacitated person may not want the person chosen to be Guardian to be fill that position or the treatment chosen for him or her.

What if there is both? Who wins?

Picture of two men arm wrestling over a contract

In this hypothetical, it might arise that the Advance Health Care Directive was discovered after the Guardianship had already been put in place. Or maybe the Advanced Health Care Agent was privy to the guardianship until the it had already been awarded. If there are disagreements between the Guardian and the Agent, according to Utah Law 75-2a-112(2) the decisions of the Agent trump those of the Guardian unless the Court has ruled differently.

Pay Your Attorney now or Pay for two attorneys later

As you can see the old adage, “an ounce of prevention is worth a pound of cure” holds true to this situation. By appointing a health care agent, not only do you get to choose your Agent, but you also get to tell them how you want to be treated ahead of time so that your treatment can be customized to your specific comfort. If you don’t have a health care directive now, please save you and your loved ones time, money, and headache by scheduling an appointment to get one done today.

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Why Probate is pricier than a Trust

I hope you enjoy the firm’s latest video

If you prefer to read, please see the following transcript

Wes Winsor Law Presents: Estate Planning, Pay for it Now in Cash or Pay for it later with your children’s cash, time, and frustration.

Let’s say that you get your estate plan in place and it costs you $2,000. You are thorough and you follow through to make sure the Trust is properly funded.

When you die, the successor trustee could be able to issue deeds, retrieve money from the bank, pay off creditors, and transfer all the remaining assets to the living within a day or two. If your heirs have a problem with the distribution, they are unable to blame anyone but the deceased and relationships with their co-heirs are more easily maintained.

Without a plan you will need to go through the Probate Court. In Utah the filing fee for a probate is $360. If you are a do-it-yourselfer it will probably take you at least 10-20 hours of research and a few trips to the clerk’s office to get it started. Even then, you will probably wonder if you are doing it correctly.

Often the person doing this will have to front the initial fees until the Court gives them authority to reimburse themselves for not only the court costs, but also the costs to maintain the property which could take a couple of months.

If you hire an attorney to help you through the process, then you will probably end up paying $1,500-$2,000. Not only will this outlay be accompanied by a loss of time till distribution, but it will also be compounded by the frustration of piecing together all of your property, assets, and holdings.

In addition relationships among the heirs can suffer because of the inability to unequally distribute the non-cash items. Backbiting, feuding, lawsuits, and animosity is not uncommon when an heir has to make the decisions of how to distribute property among the co-heirs.

In the end it is your choice. Be proactive and plan and pay for your Estate plan now, or put that burden on your heirs and children.