Having practiced law for over 30 years in the area of estate planning, I have found a few simple truths to keep in mind as one contemplates an estate plan:
1. Keep things as simple as possible.
Yes, there are some very sophisticated estate planning techniques of which I am familiar and occasionally use, but by and large most persons require fairly basic documents, such as a will and healthcare and financial powers of attorney. I would also include a living trust as a fairly simple document from which most, but not all, can benefit. That said, it is important for one to understand the nature of any document that one has in his or her estate plan. Perhaps it is not necessary to understand every word contained in a document, but one should at least know what the document does, i.e., probate avoidance.
2. Know what your goals are and prioritize them.
Oftentimes, I speak with individuals and couples who tell me what their concerns are. A young couple may want to appoint a legal guardian over their minor children should something happen to both of them. An older person may have experienced the probate of a deceased relative and want to insure that his or her estate does not end up in probate court. On the other hand, many people come to me only knowing vaguely what their concerns are. They may be worried about paying estate taxes, a Medicaid lien should they go into a nursing home, or both. To a certain extent, goals may compete with one another. You cannot always have your cake and eat it too. As an estate planning and elder law attorney I work diligently to make sure the documents that I prepare take into account the client’s particular needs and concerns to the greatest extent possible. This requires me to ask the right questions and carefully listen to the client when we meet as all information does not necessarily find its way onto the estate planning information sheet.
3. Always take a holistic approach.
People do not always understand what assets will actually pass under their wills or trusts. What about joint accounts and jointly held real estate? What about designated beneficiaries of life insurance and retirement plans? As your attorney, I spend a great deal of time determining how your assets are currently held, and what steps can be taken to ensure that the various aspects of your estate plan work well together. This may require me to communicate with your financial planner or C.P.A., or for you to provide me with copies of account documents so that we can be confident that things will go as intended after death or disability.
4. Confidentiality is of utmost importance.
Your estate plan is unique to you. You have the power under the law to exercise your rights to make testamentary dispositions of your choosing and to appoint whoever you want to act as guardian, executor, trustee, or agent. Although I can give plenty of advice to the client, the client must decide what he or she does. It is not my practice to pass value judgements if you want to bypass a gift for a particular child, or choose one child to act as executor and not another.