Estate Planning

Here is what you need to know.

A lot of us know that “I need a will” – especially the older we get.



A “will” tells the people you leave behind what to do with your stuff and with your kids.

Unfortunately, that only deals with the SECOND stage of the actual problem.

People buy life insurance. They buy car insurance. They buy health insurance. They buy homeowner’s insurance. They buy renter’s insurance. They buy umbrella insurance. They buy disability insurance.

They buy all these things to protect themselves and protect their family.

But they forget something.

The MOST IMPORTANT PART of what we call an “estate plan” is what a will does not address.

A will addresses the second part – when you’ve passed away.

But it misses the FIRST PART: when we are still here, but we can’t personally take care of ourselves.

When we can’t take care of our property, and we can’t take care of our kids, we’re here, but we’re not capable. That’s called “incapacitated”. We’re unable, and we’re not dead yet!

A will only goes into effect after we’ve died. A will only goes into effect after we are no longer living.

But if we are STILL ALIVE but INCAPACITATED – a will does nothing yet!

INCAPACITY is the first part – and often the most important part!

Who gets to make the medical decisions for us? Who gets to and/or has to pay your bills for us? Who takes care of our kids? Who takes care of our pets? What if our spouse and I are in a car wreck together – what happens to our kids tonight?

An Estate Plan from the Law Office of Duke Barnes answers these questions AHEAD OF TIME!

We don’t want the police and the courts to GUESS what we would have wanted.

We don’t want our families who love us to GUESS what we would have wanted.

And we sure don’t want what the bad apple family members that don’t like us want to try and think they can steal from us after we’re gone!

Here is an example what would happen without a proper plan: A husband and wife are in a car accident and are both taken to the hospital, unconscious. The paramedics or a nurse goes through the man’s wallet that is cut out of his pocket, or goes through the woman’s purse. They’re looking for an ID. If they find a driver’s license, it only has an address – not a phone number – no instructions. Their cell phones have passwords on them. Or even worse, the phones are still in the wrecked car or smashed beyond use. There’s no one to call. They call the police to do a welfare check on their house. The police ring the doorbell. The baby sitter answers. Child Protective Services (CPS) shows up next. The police dismiss the babysitter and CPS puts the kids in foster care. Animal control take the dogs and the cat. What about the fish tank? The family might not ever see the pets again. The extended family fights CPS in an expensive battle to try to prove who you would have wanted the kids to go to.

The number of minutes that it is acceptable for our clients’ kids to be in foster care is: ZERO.

One of the things we do is we put a driver’s-license-quality emergency instructions identification card with emergency contacts listed on the card. That card STARTS the process.

One of the things we do is we give instructions to every baby-sitter that automatically puts into place the pre-determined plans.

Next, our clients’ pre-arranged action plan instructs and enables exactly who can and should make our medical decisions and exactly who can and should make our financial decisions if and when we are incapacitated. We give our clients the tools they need in order to do it.

Our tools are effective at the appropriate times, no sooner, but also right on time, when we need them.

We are also here to help to make sure it’s done if that’s what you need later. We make sure the important things are taken care of when it matters most.

Our founding attorney, Duke Barnes has been practicing and focusing on the laws and real-world solutions related to family relationships. We want you to live a better life because you came to us to create your customized plan for you. We want to eliminate these problems so that you can take care of the things that matter the most for you.

Our plans include wills, powers of attorney, medical directives, and protections for your children and your pets. All of our plans include your Emergency Instructions ID’s.

Estate planning is the most commonly procrastinated protection. But when you need it – it is so important. Get it now to protect yourself and the people that you love.

Last Will and Testament
If you die without a Will then your estate is considered “Intestate.” Being Intestate means that the State, not you, decides how to distribute your property.

What is a Will?
A Last Will and Testament is perhaps the most important legal document the average person will ever sign. A Will is an instrument that, upon your death, controls who gets your property, who will be the guardian of your children, and who will manage your estate. A Will is limited to your probate assets and has no control over jointly held assets or with a beneficiary designation. The people or entities who receive your assets are known as Heirs or Beneficiaries.

Example: Let’s say you are a Tennessee resident owning a term life insurance policy. Your Will states that all life insurance proceeds pour into Dynasty Trusts to help protect your children from divorce. You are concerned that your daughter’s husband in Georgia might divorce her and take the proceeds. But, you have forgotten that your life insurance beneficiary designation names your sister in Knoxville, Tennessee as beneficiary. You did this when your daughter was younger but never changed the name. At your death, the Will is filed in Nashville giving your executor full power over your probate assets. Your life insurance is not a probate asset as it names a beneficiary. Your sister can take the life insurance and not share any portion with your daughter.

What is the Purpose of Will?
A Will’s primary objective is to dictate where your probate assets pass at your death. A Will is about property ownership, but it should also be about Asset Protection. A Will’s purpose can also be about naming a Guardian for your minor children.
Without a Will, the state’s Intestacy Rules decide where your assets pass. Your wishes are ignored. Your Will allows you to select who receives your things at death rather than the State. Though it is possible to leave some assets through Beneficiary Designations or Joint Ownership, a Will gives you much more flexibility. A Will allows you to leave assets in Dynasty Trusts, Bypass Trusts or other Irrevocable Trusts sheltering the inheritance from the Beneficiary’s possible divorce or creditors. The Will is also an excellent tool to create trusts to help keep assets within the family and away from son-in-laws and daughter-in-laws.

Example 1: Mr. Jones is a single man living in Murfreesboro, TN and wishes to leave his house to his daughter, who also resides in Murfreesboro. He believes that his son, living in Sarasota, Florida, has no need for the home. He tells both children his wishes but has no Will. Mr. Jones dies. Because he has no Will, his kids must now open an Administration with the Rutherford County Register of Wills. The Tennessee Rules of Intestacy apply, dividing Mr. Jones’ assets between his two children. The son petitions the Rutherford County Court for an order to sell the house. The judge will grant this order. The proceeds are divided equally between the children. Mr. Jones’ wishes are not respected because he failed to retain a Rutherford County Estate Planning Lawyer to draft a Will. Had he signed a Will, the house would have passed to his daughter.

Example 2: Ms. Smith is a married woman without children residing in Davidson County, Tennessee. She has a 1/2 interest in the family farm, as Tenants in Common with her brother. She wants this 1/2 interest to stay in her family. Her husband knows this as does her family. The family and husband discuss the plan often. Ms. Smith dies without a Will. Ms. Smith’s husband opens her estate as an Administration with in Davidson County. The Tennessee rules of Intestacy apply. The 1/2 interest passes to her husband, who refuses to give the land to Ms. Smith’s family. He never really cared for his wife’s family, so he instead gives the 1/2 interest to the Hells Angels motorcycle club. The Hells Angels now own the 1/2 interest. Had Ms. Smith had a Tennessee Estate Planning Attorney draft a Will, this problem would have been avoided.

Power of Attorney
One of the Big Three Essential Estate Planning Documents, a Power of Attorney helps make sure you have a reliable team ready to step in if you are ever unable to care for yourself. With a Power of Attorney, you pick your team, not the court.

What is a Power of Attorney (or POA)?
You cannot be everywhere at once. Having another person stand in or sign for you might be necessary or merely convenient. A Power of Attorney is a document authorizing someone else to act as your Agent. An Agent is someone acting for you.

Why You Need to Name a Power of Attorney Sooner Than Later
To create a Power of Attorney you have to be an adult of sound mind, able to understand the powers which you are granting to your Agent. Sadly, people often put off signing a Power of Attorney until either age or infirmity reduces their capacity, so they are no longer legally able to grant a Power of Attorney. In these cases, the family is required to file a Guardianship Petition, which is much more complicated and costly. Further, your wishes are no longer respected, the court picks the person who acts on your behalf.

What is an Attorney in Fact?
The person given powers to act on your behalf is called either the “Agent” or the “Attorney in Fact.”

How Do You Get a Power of Attorney?
A Power of Attorney is part of every good Estate Plan. You typically sign a Power of Attorney at the same time you sign a Will and a Medical Power of Attorney. These documents are the “Big Three Documents” or “Must have Estate Planning Documents.”

Types of Powers of Attorney
Powers of Attorney can be Durable Powers of Attorney or Springing Durable Power of Attorney. A Durable Power of Attorney would be in effect when it is signed and executed. On the other hand, a Springing Durable Power Of Attorney “springs” into action when you become incapacitated. For example, you can require two physician reports stating you are unable to manage your affairs before the Power of Attorney would be in effect.

Living Will and Medical POA
The Difference Between a Living Will and the Durable Healthcare Power of Attorney
Both Living Wills and Durable Healthcare Powers of Attorney address decisions regarding your healthcare. The Living Will states your specific wishes with regards to removing medical care if your doctor believes there is no chance for your recovery. A Durable Healthcare Power of Attorney (sometimes called a Health Care Proxy) compliments the Living Will. The Durable Healthcare Power of Attorney gives someone else the power to make all health care decisions, including carrying out the wishes you have addressed in your Living Will when you are not able to make those decisions.

How Do I Set up a Living Will?
A Living Will requires lots of thought. Selecting the wrong person as Surrogate can mean your wishes are not respected, and conflicts can arise within the family. An experienced Estate Planning Attorney will brainstorm with you about your decisions.

What Should Be in a Health Care Power of Attorney and Living Will?
Your health care is your business, and you have the right to make your health care decisions as long as you are capable. In today’s world of modern medicine, you may quickly need medical decisions long after you are no longer competent and capable of communicating with your health care provider. These situations can arise suddenly, the result of an accident or unexpected illness, leaving decisions such as what doctor should care for you, what treatment protocol to follow, and refusing medical care up to someone else. These can be tough decisions, and it is important to you that the person making them represents your wishes, and it is vital to the person on whose shoulders you place this burden to know what actions you want them to take. By completing a Health Care Power of Attorney and Living Will, you can voice your wishes, select the person who will speak for you, but also give that person guidance to make these challenging and personal decisions. A properly drafted Health Care Power of Attorney and Living Will should:
-Appoint a person who can make health care decisions for you if you are ever unable to make them yourself;
-Give that person the power under HIPPA to review your medical records and to gather information from your medical team;
-Give your Surrogate guidance as to what your wishes are for medical care; and
-Give your Surrogate the power to agree with your physician to stop providing you medical attention if you are in a persistent vegetative state or a terminal condition.
Also, you may choose to address other issues, such as designating your Surrogate to have the power to donate your organs. Not every person is able or willing to serve as a medical proxy. Further, the decisions made might mean turning off your life support, so communication to your Medical Agent about your wishes and ideas on life support is a vital step in your estate plan. Without your guidance, there could be disagreements among your family and friends as to who should be making decisions and what you wished.