It is virtually impossible to overestimate the importance of estate planning, because estate planning is a family affair. The execution of your estate plan might begin while you are still living. You might become incapacitated (unable to make decisions or to communicate them) years before you die, for example. In any case, executing your estate plan is going to require the cooperation of other people—trustees, etc.—who are likely to be your own children.
Five Parts of Your Estate Plan That Are Likely to Require the Cooperation of Your Family
You must communicate with your family, and likely your children, before you can complete a viable comprehensive estate plan. You wouldn’t want to appoint someone to take over as guardian of your children, for example, without consulting with that person about the matter in advance. The same is true for trustees, executors, and other positions of responsibility. Following are five areas of particular concern.
The Executor of Your Estate
Most people die with some assets that must pass through probate. If you are one of them, or if you anticipate that you might become one of them, you should prepare a will and appoint your executor in your will. Since your executor will have power over your estate finances after you die, appoint someone you trust to manage your assets prudently. Your nominee should thoroughly understand the duties of an executor before agreeing to be your nominee.
The Guardian of Your Minor Children
Most people don’t die before their children grow up. If your children are still minors, however, you cannot guarantee that will be the case with your family. If you were to suffer an untimely death, you probably wouldn’t want a court to decide who would be raising them to adulthood. Select a guardian and an alternate, taking your children’s likely preferences and personal needs into consideration. Naturally, you should discuss the issue with the proposed guardian and seek their consent.
Your attorney-in-fact is the person you appoint to act on your behalf in case you become incapacitated and cannot manage your own financial affairs. Many people appoint a son or daughter for this job. Despite the misleading name, your attorney-in-fact does not have to be an attorney. The qualities you need in an attorney-in-fact might differ considerably from the qualities you need in, say, a guardian for your children. For example, you will want to choose someone who is trustworthy and good at managing money.
The Trustee of Your Living Trust
A living trust is a popular device used to keep assets out of probate. Establishing a living trust will prevent your beneficiaries from having to experience delays in receiving your assets. You can either appoint yourself as trustee or appoint another person. If you appoint yourself, you will need to appoint an alternate trustee to serve after you die. Appointing one of your offspring makes sense, because a trustee can be a beneficiary as well.
Your Health Care Proxy
A health care proxy is like a medical power of attorney. Your proxy will be empowered to make medical decisions on your behalf should you become incapacitated. Although you cannot imagine all possible end-of-life scenarios, you should make sure your proxy thoroughly understands your attitudes about these issues. Naturally, your adult child is one of those most likely to understand what you would want.
A possible alternative to a health care proxy is a living will, which is a document that expresses directives with respect to end-of-life decisions (a “Do Not Resuscitate” order, for example). You might want to appoint a health care proxy anyway, since a living will might not be able to anticipate all possible scenarios. In the absence of guidance, your doctor will make the decision. They will probably make the decision conservatively (i.e., err on the side of keeping you alive).
Locating Documents and Information
Your family will find it impossible to effectuate your estate plan, both before and after your death, if they do not know where to find the documents and information that describe it. What good is a durable power of attrorney after you become incapacitated, for example, if nobody can find it? What good is a living trust if your the trustees, beneficiaries, etc. cannot find the trust document to confirm the terms of the trust?
A few decades ago this might have all come down to searching through drawers and papers. Now, however, people keep information online that is password-protected. What happens to this information after you die or become incapacitated if you haven’t told anyone else your passwords?
Suppose, for example, you keep important information about your estate plan on Google Docs. Don’t assume that once you die or become incapacitated that Google will simply turn over the contents of your account to any relative who inquires. The transfer of this information to a relative could take a lot of red tape, and it might prove impossible.
If you want your online accounts accessible to, for example, your estate executor, you need to make extensive arrangements in advance. You might want to set up Google’s Inactive Account Manager, for example. Another precaution would be to provide a periodically updated list of your passwords, etc. to your son or daughter. Bequeathing your online accounts to your children in your will can help them qualify for access. But don’t include passwords in your will!
Estate Planning Is a Family Affair
Don’t let your death or incapacity catch your relatives and beneficiaries unprepared. Involve your children in your estate planning early on. Another person you will need to involve, of course, is an experienced estate planning lawyer.
Andrew M. Lamkin has devoted his law practice to estate planning, probate, and elder law. He has not only been admitted to the bar associations of both New York and New Jersey, he has been inducted into the National Academy of Elder Law Attorneys (NAELA). Contact Lamkin Elder Law, either online or by calling 516-605-0625, so that we can schedule an appointment to discuss your plans.