{Read in 6 minutes} One of the most common reactions that my clients have after they sign their estate planning documents is relief. Perhaps they feel that they are being mature adults and writing a Will is one of those adulthood milestones. Maybe they feel very strongly that they do not want to die without a Will. Or perhaps they feel even more strongly about taking care of very important beneficiaries such as their spouse, their children, or beneficiaries who are under a disability.
Many of them may also do some planning to minimize estate taxes or income taxes. But these are becoming less common concerns with the recent major changes to the estate tax law.
But now that the documents are signed, what happens next? As an attorney, I always think it’s important to review this with my clients, and discuss what the options are and why each of them are important. For the following most commonly executed estate planning documents, I thought it would be helpful to talk about what clients (mine or others) should do with them.
Last Will and Testament
Upon your death the Surrogate’s Court, is going to need your original Will. Therefore, who keeps custody of the original Will is extremely important. Generally, there are four choices:
– The client can retain custody of the original.
– The client can give it to their Executor.
– The client may choose to leave it with their lawyer.
– The client may file it with the Surrogate’s Court for a one-time filing fee of $45.
As I discussed in the article linked above, each of them has advantages and disadvantages.
What else should one do with one’s Will?
Very often clients will ask for photocopies, which they will give to important people. Who are those potentially important people who might receive a copy? Well, they are Executors and alternate Executors, who will need the Will in order to complete their tasks as Executor. Trustees of Testamentary Trusts are also important, as are Guardians for Minors.
Finally, clients may wish to give a photocopy to beneficiaries — however, this is a mixed bag. Some clients want everyone to know exactly what they are getting. Others don’t want the contents of their Will to be a surprise after they are gone — particularly if they have disinherited a family member. However, if the client anticipates a Will contest, it’s often a good idea to discuss that with the disinherited party — it may prevent a tremendous amount of litigation and airing of the family’s dirty laundry before a jury.
Power of Attorney
A Power of Attorney is a document a client files to appoint an agent to make financial decisions for them during their lifetime.
Although it’s not required by law, banks are often fussy about seeing original documents, therefore, I like to have my clients execute this document in triplicate. Usually what the client winds up doing is keeping one of the originals for themselves, and giving the other copy, or copies, to their agents. Sometimes the client will also give an original copy to a trusted third party, who can only deliver it to the agents upon the incapacity of the principal.
Health Care Proxy
A Health Care Proxy is a document that one should distribute far and wide. I tell clients that generally no one will ask for the original Health Care Proxy, and I give it to them to hold among their important papers. I also encourage them to give copies to each of the agents they have named under their Health Care Proxy, and to their medical care provider. For clients who travel often, it may be a good idea to hold a copy of the document in several different residences or offices, or upload it to the cloud.
The Living Will
A Living Will is a document where a client states their wishes concerning artificial or heroic measures to keep them alive. As a best practice, I generally have clients sign one of these documents. I will then give them several photocopies, telling them that they should keep a copy among their important papers, but also give copies to the agents they have chosen to make medical decisions, if there comes a time when the client is unable to make those decisions for himself or herself.
Why is it important for the agents to have this document? Well, consider it the “marching orders” for the agent. Presumably the agent is going to be having a difficult time emotionally making a life-or-death decision for their loved one, and knowing that they have committed their wishes in writing will give the agent some comfort.
Generally, I tell the clients not to give the document to their doctors or hospitals. Why? In my experience, medical care professionals generally prefer the Health Care Proxy, which is written in black-and-white terms as opposed to the Living Will, which tends to be written in shades of gray.
After signing documents, I tell clients it’s important to have some sort of a management plan about how to distribute them. We go over this list of documents after the client has signed, and I thought it would be helpful to share that in this blog. If you have any further questions, feel free to contact me.