Some people never get around to retaining a lawyer to prepare their Will, Living Trust or other important estate planning documents. It is not uncommon for the families, including beneficiaries, of those individuals to wind up in my office to address the consequences for their lack of planning once they have passed away.
The common excuses that are related to me or that I hear from individuals discussing the possibility of having me conduct estate planning for them are as follows:
As for the first excuse regarding the need for estate planning documents, not having estate planning documents can result in your family, friends or charities being left out of your intended plan (or result in your property going to people who you did not intend to receive it). It can also result in additional taxes, fees, delays and disputes. The costs of the probate process can greatly exceed the cost of a comprehensive estate plan. Further, an estate plan most often covers more than the mere distribution of assets upon your death. It also covers issues such as “Who will make healthcare decisions for you when you are unable to make those decisions for yourself?”
With respect to the second excuse regarding one's age or health, occasionally people who would like to sign a Will and Trust have waited past the time when they can do so (due to mental incapacity). Others pass away before they have had the chance to sign their documents. Accidents, illnesses and misfortunes happen without warning.
The most extreme situation in my practice of over 30 years that comes to mind regarding this excuse is where I had to rush to the hospital and hold documents as my client, who was lying on a stretcher being taken in an elevator to heart surgery, scribbled his name on the various documents that we had been in the process of preparing for many years. Fortunately, the client survived a very complicated and serious heart surgery, but you get the point.
If you wait until the last minute, you might not have sufficient time or ability to make use of available techniques to save taxes, eliminate probate and properly take care of your intended beneficiaries.
As for the third excuse regarding the self-prepared estate plan, while almost any estate plan is better than none, mistakes and problems occur when people try and prepare their own estate plan (including lawyers and judges who do not regularly practice in this area of law). Some persons compare it to do-it-yourself surgery. The problem with do-it-yourself plans is that oftentimes, an individual does not possess the understanding of certain complexities that can be present even in what may seem like straightforward property ownership terms and definitions.
As for the person secure in the fact that they signed a Will many years ago, I would point out that estate planning is a critical part of your overall financial and life planning. A wise person would not buy stock or other investment and then completely ignore it for 30 years. Similarly, an individual should review his or her estate plan every few years and whenever there is a significant change in circumstances. I always advise clients to revisit an estate plan upon a change in "health or wealth." You and your attorney may review your plan and realize that it is still appropriate.
I encourage you to promptly complete and periodically review your estate planning documents with a qualified estate planning attorney.
If you currently have a Living Trust, we suggest that you promptly follow through on retitling assets into your Trust (i.e., "funding" your Trust). Failing to do so may result in additional expenditures of time, fees and costs upon disability or death, and risks of loss of privacy in litigation associated with probate court proceedings.
Life teaches us that nothing is as simple as it seems. The same holds true for one's estate plan.