{Read in 7 Minutes} As a Trust and Estates attorney, crafting estate planning documents for people is a large part of my job. Whether we are talking about:
•Trusts,
•Wills,
•Health Care Proxy, or
all of these documents are things that my clients — and/or my clients and I — spend a fair amount of time tailoring to meet their specific needs.
As I have said in previous articles, an estate plan is not something that ages into obsolescence. There is no need to update or redo it simply because a certain number of years have passed. What I do advise, once every two or three years, people should perform a simple check to make sure that all the documents still meet their needs. If you put a lot of thought, time, and energy into creating your estate planning, isn’t it worth twenty minutes of your time every other year? Here is a simple checklist of four things that you can do to ensure that the plan still fits:
1. Where are your legal documents?
Signing legal documents is great, however, they are not going to be particularly helpful if nobody knows they exist. This is particularly true of your Will, because, after your death, the Surrogate’s Court will require your Executor to produce the original when offering it for probate.
•Your Power of Attorney should be available to your Agents if they ever need to manage your finances.
•The Agents on your Health Care Proxy will need to have a copy of it to present to doctors or hospitals if they need to make a medical decision on your behalf.
•And of course, those Health Care Agents should have a copy of your Living Will so they know what to do if they ever need to make a life or death decision when it comes to your health care.
While many people may make a conscious decision not to share documents with these individuals during their lifetime, it’s important that they be informed that they have roles as fiduciaries, and who to contact to get copies of these documents, if the need ever arises.
2. Make sure that all of the people that you have given jobs to are still alive and the appropriate choices to do so.
When crafting an estate plan, a client will appoint a number of fiduciaries. These may include Executors, Administrators, a Trustee, and Agents under a Power of Attorney, or a Health Care Proxy.
All of these people will have to be involved in some sort of role, either towards the end of your life or upon your death. It’s important to make sure that they are not only still alive, but also willing to handle the responsibility. While some people may think it’s an honor or do it out of an act of love or respect for you, an equal number of people may see this as a burden rather than a blessing. If someone is deceased or does not wish to serve, take a look and ensure that you’ve picked an alternate person — and that they are alive and willing to serve.
If they are deceased or unwilling, it’s probably worth it to talk to your attorney and have a conversation about revising the documents and selecting some new fiduciaries.
3. Don’t forget about assets that pass outside of your Estate.
When one dies, there are certain assets that pass as part of their Estate and certain assets that pass outside of the Estate, usually by way of a beneficiary designation form, or a joint title on a bank account or real property.
Many people think they have a recollection of who they have named on the retirement accounts that they opened over 20 years ago — and sometimes they are surprised that their recollection does not match what is written on those beneficiary designation forms.
Take a minute and contact the Administrator and confirm who the beneficiaries are. It can save a lot of hassle and heartache, especially if the beneficiary is an ex who would be all too happy to count their money while dancing on your grave.
4. Have your priorities changed concerning your beneficiaries?
When people write a Will, they have often given a lot of thought to who will inherit their assets after their death. However, people’s circumstances change. Marriages may end. Families may have disputes. Or sometimes circles may grow if the client subsequently marries or has children who did not exist at the time they wrote the Will.
Take a look at your documents and make sure that you have included everyone you want to include. Sometimes this does not necessitate a revision to your Will. For example, your Will may make reference to leaving everything to your children who survive you in equal shares. If the attorney drafted the Will correctly or carefully, there may be no need to update this because the Will references any children who survive you, regardless of whether they were living or whether they were born at the time you wrote the Will.
Also, you may have put someone in there who you no longer want to inherit — not because you’ve had a falling out with them, but because they are dead. If they are dead, they will not inherit so it is likely unnecessary to review or rewrite your Will unless you otherwise directed what would happen to those bequests.
As discussed above, this is a simple, routine check that one can do every two or three years to make sure the plan still fits. If it does, pat yourself on the back for doing the mature and responsible thing and make a plan on how to spend that money you would have otherwise spent on legal fees and revising your plan. If the plan no longer fits, consider making an appointment with your lawyer to discuss.
For more information on this topic, please contact me.