- You have no estate plan! I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney). If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones. This could cause unnecessary and unexpected costs, delays, and loss of privacy.
- If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan. Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
- Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive? Are they still capable of serving? Do you still want them to serve?
- Review your beneficiaries. Review who you listed to inherit from you. Are they still alive? Do you still want to bequeath to them, or add additional beneficiaries? You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
- Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.” What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts? What happens to money in your etsy or ebay store’s PayPal account? Do you want your spouse to have access to your Facebook account at your death? Or your emails? These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
- Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless. You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust. You can fund while living, or set it up so that this funding occurs at your death.
- Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney. Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.
If you would like to discuss your estate plan, contact me at email@example.com.
You have died, so your survivors are already grieving. No one wants to “tie up loose ends” and take care of standard post-death things such as getting your death certificate, distributing your possessions, selling your house, etc. These five ways will almost ensure that their job is made worse.
- Die without a will. Dying without a will is called dying “intestate.” Without a will directing what goes where, the person in charge of administering your estate needs to distribute according to statute. This process could be easy, or could be difficult, but will almost definitely be more of a hassle. If you have minor-age children, quadruple the “hassle quotient.” Now the Court will need to determine who cares for your children (guardian) with no guidance from you–the person who knows best who the guardian should be.
- Have a trust prepared but do not fund it or put assets in it. If you wisely have a revocable living trust prepared to, among other things, avoid probate, and you fail to re-title or deed the assets to your trust, then these assets will need to go through probate. (This is not true if held in survivorship deed.) I have seen probate estates opened just to probate a house or other deeded or titled property when the deceased had a trust prepared, but the trust was “empty”(unfunded).
- Fail to designate a point person to hold passwords to social media, email and other accounts. Survivors might want access to your pictures, or to let others know you have passed. At one point one company that stored pictures online would not let a surviving husband access his wife’s account. Her account happened to contain almost all of their childrens’ pictures from birth. For a professional with a LinkedIn account, notifying colleagues of your death might be critical to clients or matters. In some circumstances a court order can lead to accessing the account. Lessen the workload of your survivors by leaving a list of accounts and passwords in a secure place with a trusted person.
- Fail to leave instructions regarding cremation or burial. This is one area that can turn amicable survivors into feuding adversaries. Some people have strong feelings against being cremated while others have strong feelings against being buried. Families often argue over which cemetery will be chosen, or where ashes are to be stored or scattered. Do your family members a favor and specify these instructions.
- Neglect to provide for the care of pets. Who will care for your dog, cat, horse, or other pets if you die? Leaving a relative to distribute your assets and close your accounts is enough work without also leaving it up to him or her to find homes for your pets, or to be put in the heart-wrenching position of having to take them to the pound or shelter. Leave provisions for pets in your will or have a pet trust prepared.
In my previous post, “Just married, no kids–do we need a will?” I advised that you might not need a will under certain circumstances. One circumstance, in my opinion, necessitates not only a will but a living trust: having a minor child. If you have just a will, your minor child would inherit everything at age 18 from his or her deceased parents. Very few 18 year-old young adults would be capable of managing money from an inheritance, let alone saving it for college and a secure future.
If you have young children please take a moment to read this post, “What is Revocable Living Trust,” from guest blogger and attorney Kevin Spence.