Why easier isn’t always better estate planning
January 4, 2016
As an estate planning and elder law attorney, one of the biggest concerns my clients express to me is the desire to make the process easier on their family. My clients often state how they want to avoid a guardianship or probate, make it easy on their family, and keep things simple. As I work with my clients, I often raise questions about issues that they have not considered before. That is part of my job as an attorney and counselor at law to identify potential problem areas, plan for them, and hopefully avoid them — far in advance of the actual crises.
As a result, my documents — including my wills and trusts — are significantly longer than what many clients expect. They just want a "simple" one page will, or a 10-15 page trust, and yet my documents are often much longer. This is because a robust estate planning document, custom tailored to the personal concerns of my client, lets me meet the client's felt needs, as well as planning for future potentialities. It prevents unnecessary court intervention in the future, and provides cleaner solutions than if the potentialities were ignored.
A good will or trust should include back-up provisions for future potentialities. For example, a good will or trust should include provisions for what happens if all your named heirs pass away before you do. In this way, you can direct that your property go to other specific individuals, or valued charities, instead of it passing to your next-of-kin under statute. Another example would be how to select a trustee or executor if your nominated individuals are unable or unwilling to serve. And, I believe, every estate plan should include back-up provisions to provide for an heir who later becomes disabled. If an heir inherits from you outright (i.e. without keeping it in trust), but they are also receiving disability resources, your inheritance may deprive them of the very services they need to keep a roof over their head and food on the table. Rather than assume such a disability will never occur, a good plan will provide a backup trust to hold a disabled heir's inheritance (called a "supplemental needs trust") so that your wishes are honored, and your loved one does not lose needed resources.
Each of these situations — the death of your heirs, the death or disability of a trustee, or the disability of an heir — may not seem relevant today, as you put your plan together. However, as a professional, it is my job to craft a plan that covers these potential problem areas and solves them now. These situations may never arise, but if they do, a good professional will have provided for them in your estate plan. To craft a good will or trust that includes these provisions will require a lengthier document.
But what happens if these types of foundational and back-up provisions are omitted? Certainly the document will be shorter, but it will often result in unnecessary court intervention — perhaps a petition to the court to fill a trustee vacancy, or for an interpretation of the terms of the trust. It may also result in an heir's loss of veterans, disability, or Medicaid benefits. It could also result in distribution of your assets in ways you never intended — like giving a windfall to your cousin twice removed, instead of the charity you're passionate about.
Removing such foundational and back-up provisions will make your will or trust shorter, but it will not make things easier or simpler. Instead, working with a qualified estate planning professional who will carefully consider your specific needs, concerns, and desire, is the best way to make things simpler and easier for your family. In that way, a qualified professional can help you plan around potential problems, and avoid unnecessary court intervention.
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Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.