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Plan Not Just for Yourself, Plan for Your Family

Kierman Law

Presented by

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Allison Kierman

is the founder of Kierman Law, a Scottsdale-based estate planning firm helping Arizona families protect what matters most. ��With nearly 20 years of legal experience, she makes estate planning approachable and personal, crafting wills, trusts, and business plans that reflect each client’s unique story. ��Known for her warm, practical guidance, Allison empowers families to plan with confidence and peace of mind. ��When she’s not in the office, you’ll find her exploring Arizona’s trails, spending time with her family, or volunteering to educate her community about the importance of proactive planning.

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Death Can Escalate Family Conflicts

No matter how old you are, losing a parent can be devastating. Having to take on the responsibility of caring for aging parents can also be very emotional for a child.

When a parent dies or becomes incapacitated (i.e., is alive but unable to manage their own affairs), it can unfortunately bring out the worst in even the most well-meaning children. Grief, stress, and uncertainty often collide, and siblings who once got along can find themselves arguing over who should be in charge, who deserves what, or whether decisions are being made fairly. Without clear guidance from their parents, old resentments and sibling rivalries can resurface, making a heartbreaking situation even harder to navigate

You have an opportunity to make these situations easier by creating a plan and clearly expressing your goals and intentions for your loved ones.

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You Already Have an Estate Plan:

The State's Default Plan

A judge will follow state law to appoint someone to act for you.

During incapacity: Guardian or conservator to make medical decisions and handle finances
After death: Personal representative or executor to wind down affairs

A judge will use state law to distribute your accounts and property at your death.
Problems:

State law may not reflect your wishes.
Family members may fight over appointments or decisions.
Relying on the state default estate plan requires court involvement.

[Note: Update this slide to match the titles used in your jurisdiction.]

Let’s talk for a moment about what happens if you do not have an estate plan in place.

If you become incapacitated—meaning that you are alive but unable to manage your own affairs—someone will need the legal authority to step in to handle your medical care and your finances. No one—not even a spouse if you are married—can automatically act on your behalf. Without legal documents that name whom you want to act on your behalf, your loved ones will have to go to court to ask a judge to appoint someone. The court will look to the state’s default priority rules for whom to appoint.

When you pass away, someone will need the legal authority to manage your estate. As with incapacity, no one can automatically step in. Without legal documents that name whom you trust for this role, a judge will have to appoint a personal representative or executor to handle everything and, again, will rely on the state’s default priority rules.

Also, if you pass away without an estate plan, your accounts and property do not just automatically transfer to your family. Your loved ones will likely need to go through probate court before they can transfer your accounts and property out of your name and into the names of your loved ones. Exactly who is to receive your estate, though, will be based on the state’s default law.

As you can see, failure to create an estate plan and having to rely on the state’s rules has clear drawbacks. Here are a few of the major ones:

The default rules might not reflect your wishes. Even if you have shared your intentions with family in conversation, those informal statements have no legal authority and do not have to be followed.
Without clear instructions from you, confusion and disagreements can arise and, in some cases, even damage family relationships.
And third, implementing the state’s default plan requires court involvement. Probate is a court process, which means filings and records are open to the public. Also, the process can be both time-consuming and expensive.

Let’s now look a bit closer at what the state’s default plan might look like, and then later we will get into more detail about how you can avoid these challenges by putting a thoughtful plan in place now.

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The State’s Plan for Who Will Be in Charge

Typically, this is the statutory order of priority for your guardian/conservator during incapacity:

Spouse
Adult child
Parent
Relative who is residing with the incapacitated person

Typically, this is the statutory order of priority for your personal representative/executor at death:

Spouse
Adult child
Parent
In some cases, your creditors

[Note: Update the list to match your state’s statute about priority for servicing as guardian/conservator and personal representative/executor and the correct titles used in your jurisdiction.]

If you leave it up to state law and the court to decide who will act on your behalf during incapacity, the people who will generally have priority for appointment are, in this order:

[Read first set of bullets]

Depending on your state, the law may have a slightly different list to refer to when determining who will wind down your affairs at your death.

[Read second set of bullets]

In many situations, the person who has legal priority to be appointed might not be the one you would actually want in charge. And what if there are several people with equal priority—such as your children? That uncertainty can lead to conflict, drawn-out court proceedings, and disagreements over who should step into the role. The judge does not know your family the way you do, and without your input, they are left to make a best guess. And even after someone has been appointed, things can still get messy. Without clear direction from you on how medical decisions should be made or how finances should be handled, others—including the court—might question or challenge what the appointed person does.

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The State’s Plan for Your Inheritance

Typically, this is the statutory priority list for who receives an inheritance from you:

Spouse
Children
Parents
Siblings

Your wishes may differ from state law in terms of the following:

Who inherits from you
Size of each share
When and how shares are received

[Note: Update list to match your state’s intestate statute.]

When it is time for the court to determine who is to inherit from you after your passing, they will look to the state’s default priority rules of inheritance. The following is generally the order of who will receive your accounts and property:

[Read first set of bullets]

The state’s priority list might not match what you actually want. While it generally follows your family tree and prioritizes close relatives, you may not agree with who is included—or with how much each person receives, when they receive it, or how it is distributed to them.

For example, you might want to include a charity or a stepchild as a beneficiary—the state’s default plan will not allow that. You may prefer to divide your estate unequally among your children, but default rules provide only for equal shares. And if you do not want your loved ones to receive their inheritance all at once, you are out of options: The default plan requires outright distributions. This can create significant problems, especially if beneficiaries are minors, have special needs, or are not prepared to manage a lump sum responsibly.

But without a legally enforceable plan in place, state law and the court’s decisions will control what happens.

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Preventing Unwanted Outcomes with a Comprehensive Estate Plan

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Last Will and Testament

Also called a will
You name the personal representative/executor and one or more backups.
You specify who will receive your accounts and property at death.
You can name a guardian for your minor children.
You can include testamentary trusts within the will (so inheritances are not given all at once).
Requires probate

[Note: Change personal representative or executor to the term that is used in your state.]

Most estate plans are built around one of two key documents: a last will and testament (commonly called a will) or a revocable living trust.

If you decide to use a will as the foundation of your estate plan, you will be able to name a personal representative (known as an executor in some states), along with one or more backups in case your first choice cannot serve. This person steps in after your death to collect your accounts and property, pay any outstanding debts, and make sure that your accounts and property go to your chosen beneficiaries. You can also use your will to nominate a guardian for your minor children, which gives you a say in who would care for them if you are no longer able.

With a will, you get to choose your beneficiaries and what amounts they receive. And, unlike with the state’s default plan, your beneficiaries do not have to receive their inheritance all at once. You can include testamentary trusts—a special kind of trust that is funded during the probate process—within your will. These allow you to set conditions and timelines for how and when your beneficiaries receive their inheritance.

One thing to keep in mind: Using a will requires probate court. That means the court will oversee the process of distributing anything that is in your sole name and does not already have a valid beneficiary designation. While probate can be a public and sometimes lengthy process, having a will still puts you in the driver’s seat. You are not leaving things up to the state’s default rules—you are choosing who will manage your estate and exactly how your accounts and property will be passed on.

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Revocable Living Trust

Created during your lifetime
You can make changes until your incapacity or death.
You are initial trustee and can name a co-trustee or successor trustee (along with backups to the successor).
You are the current beneficiary.
You decide what happens to the accounts and property.
You can create continuing subtrusts for beneficiaries.
Does not require probate court oversight
No asset protection for you; potential asset protection for beneficiaries
Note: Some accounts and property cannot be transferred to the trust during your lifetime but can pass to it at death through beneficiary designations.

A revocable living trust is the other common option you can use as the foundation of your estate plan.

A revocable living trust is something you set up during your lifetime, and you can change it whenever you want, right up until you become incapacitated or pass away. Once it is in place, you will start transferring your accounts and property into the trust. That might mean retitling assets in the trust’s name now, or naming the trust as a beneficiary on things like life insurance or retirement accounts that you cannot transfer during your lifetime. This process is called “funding your trust,” and it is what makes the trust actually work the way you intend it to.

This type of trust is a flexible planning tool that allows you to name yourself as the initial trustee—which is the person responsible for managing, investing, and distributing the trust’s accounts and properties to your beneficiaries. You can also name a co-trustee and a series of successor trustees to step in if you are ever unable to manage things yourself.

A revocable living trust lets you maintain full control and use of your accounts and property during your lifetime, while also laying out clear instructions for what should happen to your accounts and property if you become incapacitated or pass away.

A revocable living trust—like testamentary trusts in a will—gives you more flexibility than simply leaving a lump-sum inheritance. You can include continuing subtrusts with specific instructions outlining how and when your beneficiaries will receive their shares. For example, you might choose to distribute a portion of your children’s inheritance at certain ages—such as one-third at 25, another third at 30, and the remaining balance at 35. Another option is to give your successor trustee the discretion to decide when and how much to distribute, based on each beneficiary’s needs and circumstances.

One of the biggest advantages of a revocable living trust is that it avoids probate. That means your affairs can be handled privately and efficiently, without court involvement—even if the trust stays in place for many years after your death.

It is worth noting that, because you are the creator, trustee, and beneficiary of the trust while you are alive, the accounts and property in the trust are still considered to be your own and are not shielded from your personal creditors. However, with the right structure, the accounts and property held for your beneficiaries after your death may offer some protection from their creditors—including divorcing spouses.

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Pour-Over Will

Special type of will
Names your revocable living trust as the beneficiary
A safety net to ensure that any accounts and property that were not properly funded are transferred to your trust and handled according to your wishes
Where guardians for minor children are nominated

Even if you use a revocable living trust as the foundation of your estate plan, you will still need a will, but the will that is included in a trust-based estate plan is a special type of will called a pour-over will.

While the goal of creating a trust is to avoid probate, we cannot predict every situation. If there are accounts or property that were not properly funded to your trust either during your life or at death, a probate court proceeding may still be required. The pour-over will names the trust as the beneficiary (rather than individual people as with a traditional will), which ensures that those accounts and property are transferred into your trust through the probate process and are ultimately distributed according to the instructions laid out in your trust document.

Additionally, if you have minor children, your pour-over will is where you can nominate guardians to care for them if something happens to you.

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Financial Power of Attorney

Allows you to choose a trusted agent (and backups) to handle your financial matters
Amount of authority

Limited financial power of attorney
General financial power of attorney

When the agent can act

Immediate financial power of attorney
Springing financial power of attorney

Make sure it is durable

[Note: Update this slide if your state does not allow for springing financial powers of attorney.]

A financial power of attorney lets you choose the person (called your agent) who will manage your finances if you are ever alive but unable to manage them yourself—without needing court involvement and without relying on the state’s default priority rules. It is a good idea to name a primary agent and at least one backup, just in case the primary agent is not available or willing to step in when needed.

You get to decide how much authority to give the agent. It can be as limited or as broad as you would like. A limited financial power of attorney permits the agent to carry out only certain transactions (such as signing a deed at a real estate closing). A general financial power of attorney means that the agent can do almost anything you can do.

You also get to decide when your agent can step in. One option is to make the power of attorney effective right away even if you are not incapacitated. That does not mean that you are giving up control; it just means that someone else can help out if needed. For example, maybe you are traveling, deployed with the military, or dealing with mobility issues that make it hard to handle things in person. Having someone you trust who can step in can make life a lot easier.

Another option is to create a springing power of attorney, which takes effect only if you become incapacitated. You can define exactly how that determination is made, but just a heads up—not all states allow springing powers of attorney, so it is something to check before deciding.

Finally, to make sure your agent’s authority continues even if you become incapacitated, you will want to make the power of attorney durable. This means that your financial power of attorney will still be enforceable even if you are incapacitated.

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Medical Power of Attorney

Allows you to appoint a trusted person to

communicate your wishes on your behalf, and
make medical decisions for you.

It is always a good idea to include one or more backup healthcare agents in case your first choice cannot serve.

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Advance Directive/Living Will

Allows you to convey your wishes regarding end-of-life decisions

How long to continue artificial hydration and nutrition
How long to continue artificial respiration

Take time to carefully consider your wishes, even if the decisions feel difficult

[Note: Change the name of the document to reflect what is used in your state. If your state does not recognize this document, remove the slide.]

An advance directive, sometimes called a living will, allows you to express your wishes about end-of-life care, such as whether you want artificial hydration, nutrition, or respiration to be continued, or whether you prefer not to have these measures at all if you are in a persistent vegetative state or have a terminal condition with no hope of recovery. These instructions can offer valuable insight into your values and preferences regarding medical care.

Because these decisions are deeply personal and often sensitive, it is important to take time to reflect on your wishes. Although it may require some soul-searching, understanding what you want in these situations will help ensure that your choices are clearly documented and communicated to your healthcare agent. This clarity can go a long way toward reducing confusion, conflict, and feelings of guilt among your loved ones by giving them confidence that they are honoring your wishes.

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HIPAA Authorization Form

Allows you to grant individuals access to your confidential and protected medical information
Usually includes the primary and backup healthcare agents named in your medical power of attorney, plus any others you choose
Does not grant decision-making authority to the people listed
Can help alleviate family tensions

A Health Insurance Portability and Accountability Act (HIPAA) authorization form allows you to give specific individuals access to your confidential medical information—such as updates about your condition or copies of your test results—without granting them the authority to make decisions on your behalf.

Sharing this information with your loved ones can help ease the anxiety and uncertainty that often arise in a medical crisis. It can also reduce tension between the healthcare agent named in your healthcare power of attorney and the rest of your family by ensuring that no one feels left in the dark. While only your healthcare agent can make decisions, the people listed in your HIPAA authorization form will have access to information that can help them understand and support the choices being made.

[PAUSE]

Those are the key documents that make up a comprehensive estate plan—one designed to provide clarity and guidance for your loved ones, minimize the need for probate court, and help prevent family conflict. Ultimately, this planning gives both you and your family greater peace of mind.

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Ensuring That Your Estate Plan Delivers

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Make Sure Your Plan Is Comprehensive

Estate planning is about more than just planning for your death.
It also provides protection during periods of incapacity.
Make sure your wishes are known and legally enforceable.

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Make Sure Your Estate Plan Documents

Are Up to Date

When was the last time you looked over your documents?
Recommended every 3 to 5 years
Make sure to review if you have experienced any of the following life events:

Death
Birth
Marriage
Divorce
Retirement
New job
A move to a new state

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Store Your Documents Someplace Safe and Accessible

Hard copy storage:

Weatherproof (fire, water, etc.)
Somewhere in your home
If key or combination is needed, make sure to give it to the right people.
Caution: A safe deposit box may make things more complicated.

Other ways to provide access to documents:

Digital copies can be stored on an encrypted cloud service or password-protected thumb drive.
Share your attorney’s contact details with your decision-makers; sign authorizations so attorney can share documents with them if needed.

[Note: Update slide to reflect how a safe deposit box works in your jurisdiction.]

It is just as important to keep your estate planning documents safe and accessible as it is to create them in the first place.

Wherever you decide to store your hard-copy original documents, make sure the location is weatherproof. If you live in an area prone to fires, flooding, tornadoes, or earthquakes, take steps to protect your documents from damage.

You might consider keeping them somewhere in your home. This is often a logical place and one where you would expect your trusted decision-makers to look in an emergency.

If you store them in a locked container such as a safe, make sure the right people either have the key or know how to find it. If the container uses a combination instead of a key, make sure they know the combination.

Caution: A safe deposit box can be a secure place to store important documents, but it can also cause issues if your loved ones are not listed as co-owners. Giving someone authority to access the box (rather than an ownership interest) can be helpful if you become incapacitated—but that access usually ends when you pass away. This means that they might not be able to get to the documents they need to help carry out your wishes. In some states, there are special steps to open a safe deposit box after someone dies, but it can take time and might involve going through the court.

It may also be a good idea to keep digital copies of your documents. They are often quicker to access in an emergency and, in some cases, can serve as a backup if the originals are ever lost or damaged. You might store them on an encrypted cloud service or on a password-protected thumb drive—whatever you are most comfortable with. Just like with a safe or other locked container at home, make sure your key people know how to access them when the time comes.

Another idea is to provide your trusted decision-makers with your estate planning attorney’s contact information. After you sign the necessary confidentiality waivers, your attorney can provide copies of your documents to your trusted decision-makers if and when needed.

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Be Honest About Your Wishes

You control the level of information you share.

At a minimum: Tell them you have created a plan and where to find the documents.
Middle ground: Tell them you have created a plan, where to find the documents, and who your decision-makers are
Full disclosure: Share all the details of your plan, including decision-makers, beneficiaries, and inheritance details.

If you have not done any estate planning, you can let them know.

As we were all taught growing up, honesty is the best policy. How much you choose to share about your estate plan is entirely up to you, but it is important that your loved ones at least know that you have created one and where they can find your plan documents.

You may decide to go a step further and let them know who you have chosen to serve as your trusted decision-makers—such as your successor trustee, personal representative or executor, and agents under your powers of attorney. This helps ensure that they understand their roles and are not surprised if they are called on to step in.

Some people prefer to be completely transparent and share all the details of their estate plan, including who will receive what. If you take this approach, keep in mind that you will need to update your loved ones if your plans change so that no one is relying on outdated information.

If you have not done any estate planning yet, you can also choose to be upfront about that. This honesty can save your family time and stress by preventing them from searching for a will or trust that does not exist.

[PAUSE]

As you can see, creating an estate plan is not just about protecting yourself; it is one of the most thoughtful gifts you can give your family. By putting a plan in place, you make things easier for your loved ones during what will already be a difficult time. You give them clarity, reduce stress, and help prevent family conflict. It is a powerful way to care for the people you love, even when you are no longer here to do it in person.

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Questions?

Call us (480) 719-7333 or visit our website https://kiermanlaw.com/