by Emily Dudak Taylor
Estate planning is an often overlooked piece of an otherwise responsible life. But what exactly is estate planning? It is more than just a Will, more than naming an “executor,” more than deciding who will get the antique engagement ring you inherited from your grandmother. Estate planning should certainly include those things, but it is much more, or at least with the assistance of an able attorney, it should be.
The term “estate planning” refers not only to planning for the distribution of your property at death, but also to planning for your health care, finances, and family if you become incapacitated during life. Who would pay your taxes and mortgage, or your child’s college tuition, if you became seriously ill or injured? Who would care for your minor children? These are the eventualities that a thorough estate planning attorney should prompt you to address. In this sense, “estate planning” is a misnomer; “life and estate planning” is a more accurate description.
While life and estate planning is a serious endeavor, it need not be a daunting or even a morbid one. Clients should be guided, and sometimes nagged, through the process, and they should expect more than just documents. They should expect an attorney to guide them through beneficiary designations and property titles, the execution of the documents, and finally, the distribution, storing, and updating of the documents.
The following is a guide to the life and estate planning process, a checklist of what to expect, or demand, from your attorney:
1. Deciding to complete a life and estate plan. No matter the exact make-up of your family constellation, your age, marital status, or sexuality, the size of your estate, or the state of your health, you need a life and estate plan. Otherwise, the State of Wisconsin will provide one for you, no matter your wishes, and it will assess fees to do so. You risk, for example, losing the right to choose whether to live or die, and/or not having a voice in who will raise your children upon your incapacitation or death. Life and estate planning is about you maintaining control of your life.
If you have minor children, life and estate planning becomes even more important. You need to execute a Nomination of Guardian, in which you decide who will care for your children upon your incapacitation or death. If you are not married or cannot marry, a competent life and estate plan must address a non-legal parent’s rights to the children. You must also ensure that your Will establishes a minor support trust, or something similar, to avoid your children’s inheritance being placed in a burdensome process controlled by a court.
If you have a large estate, without a life and estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones.But money or no money, children or no children, life and estate planning is also about your health care wishes. Age or the state of health is irrelevant. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terri Schiavo’s death.
2. Choosing the right attorney. Yes, unfortunately, you should retain an attorney. Completing standardized documents from your hospital, bank, or worse, the Internet, can do more harm than good. You should invest in your peace in mind and look at attorney fees as a front-end expense.
Your choice of attorney is one of the most important steps in the process. Your attorney should be one experienced in life and estate planning, and not just an attorney you know who practices in some other area of law. If your life has a so-called “non-traditional” twist, you should seek out an attorney experienced in your situation. For instance, LGBT families should retain an attorney well-versed in the unique issues they confront. The same principle applies for high-income families and individuals with specific health issues.
3. Disclosing your family tree, health, and assets. Your attorney should begin the process by asking you to complete a questionnaire regarding your family tree, mental and physical health, and assets. You should therefore be ready to list every bank account, savings bond, life insurance policy, and retirement account. Take this opportunity to organize and centralize your financial information. While the disclosure may feel invasive, without this information, an attorney cannot give you competent advice. You should expect, and insist upon, an estate plan that accounts for each and every individual asset. Again, an estate plan is more than just a Will. Your attorney should guide you through beneficiary designation forms for retirement accounts and life insurance policies, and property titles for bank accounts, mutual funds, and real estate, to avoid unnecessary probate fees.
4. Learning about and understanding your life and estate plan. After you have made the necessary disclosures, and your attorney has designed an individualized plan for you, you should go through your documents together. You should expect, and demand, to be educated as to how they work. This is important not only for your personal betterment and financial astuteness, but also for the validity of the documents. Too often, my clients come to me with documents from their former attorney, creating some elaborate trust, and they have absolutely no idea what was done or how the plan works. Such a blind-eye could create a cause for challenge of the documents.
5. The execution meeting. After your documents are drafted and explained to you, your attorney should oversee the signing of the documents with you, your witnesses, and a notary public. You and your attorney can create a brilliant estate plan, but if you do not sign the documents according to the formalities required by statute, your documents will be invalid.
6. What to do with your documents. Your attorney’s duties do not end after the execution meeting. Your attorney should provide you with guidance on where to store the originals, to whom to give copies, and how to keep track of it all. Your life and estate plan is worth nothing if the relevant people don’t know about, can’t find, or don’t have access to the documents when they need them. Your attorney should not retain your original documents. In fact, it is unethical for him or her to do so. However, your attorney should keep copies of all your documents in his or her file, and should be willing and able to release copies to you and others upon reasonable request with the appropriate client consent.
7. Updating your life and estate plan. Your attorney should instruct you at the end of the process on how to revoke or amend your documents, as well as on the life changes that may necessitate an update to your life and estate plan. He or she should also check in with you at least every five years to determine whether an update is necessary or advisable.
With the right attorney, the life and estate planning process should be structured and thorough, with the final product being not just documents, but your peace of mind knowing that you have done everything you can to protect yourself and your family.