As an estate planning attorney, I hear a lot of people say, “I don’t own anything. I don’t need an estate plan.” Here we go again, I think. How could anyone think they don’t need an estate plan?
My first impulse is to run screaming out of the room. But then I say to myself, “What would you accomplish by doing that? Aren’t you committed to being of service and contribution to each and every prospective client?”
So, instead, I silence the screaming in my head. I remind myself that financial and legal literacy are not ubiquitous in our culture, which is actually why I chose this job. Then I calmly ask the prospective client to tell me about themself, their life, and what they want their legacy to be.
More often than not, during our conversation a person will share with me that they have worked and saved a sizable nest egg, have one or more employer-funded 401k accounts, own a condo or house, or have family members and friends they love to whom they want to gift what is left after death and others to whom they want to leave nothing. They usually have very specific wishes about end-of-life care as well. And they really do want these decisions to be honored.
Unfortunately, unless you put your wishes in writing, there will be no record of who will be in charge or who is to receive what in the event of
your death. And in the event you are incapacitated – even temporarily – there will be no record of your medical wishes nor will there be someone of your choosing designated to make medical decisions for you.
So what happens without legally binding documentation? A probate court judge will choose someone to handle your finances and medical decision-making, and a probate court judge will determine who the beneficiaries of your estate are in accordance with the laws of intestate succession. Trust me, neither you nor your loved ones want to endure the expense, duration, and heartbreak of the probate court process should you become incapacitated or die intestate.
More often than not, by the end of our initial consultation, a prospective client will recognize the freedom, clarity, and peace of mind that come with putting their wishes in writing. And I am always glad I stifled the impulse to run screaming from the room.
I help each new client put together a comprehensive set of estate planning documents that includes some or all of the following:
- A revocable trust in which managers of assets (successor Trustees) are named who will manage assets for the person’s needs upon incapacity and will distribute assets after death in accordance with the prospective client’s wishes after death;
- A will by which a person funds assets into their revocable trust at time of death (called a pour-over will), or by which the person distributes assets after death;
- Property powers of attorney in which a person designates agents to manage assets upon incapacity;
- A medical directive in which a person sets forth their wishes about end-of-life medical care and decisions; and
- A HIPAA authorization that permits the release of confidential medical information to the managers of assets, the property power of attorney agents, and the medical advocates.
Depending on the value of your estate and how you want to distribute assets after death, some or all of these documents can apply. And the process is not a lengthy one.
There is a Chinese proverb that goes: The best time to plant a tree was twenty years ago. The second best time is now.
Do yourself and your loved ones a favor and act now. Find an attorney you feel comfortable talking with, review your estate with the attorney, discuss your wishes, learn about your options, and if need be, plan your estate.
Once your estate planning documents are signed, you will have created a rock solid set of wishes that will be followed by whoever you have chosen, and you will have planted a tree sure to protect and shelter you and those you love.
Joel is an attorney licensed to practice in California. He has over 32 years’ experience helping people to plan their estates, carrying out their wishes during periods of incapacity, and honoring their wishes after death. Loquvam Law.