Family togetherness and professional collaboration are great. Most of the time. For estate planning? Proceed with caution. Or just say no.
It’s common for family members and advisors to encourage estate planning. That of course is a good thing. But the planning itself should not be a group project. Group efforts are so prevalent that the American Bar Association has a pamphlet called Why Am I Left In The Waiting Room? that explains some of the basic reasons family members should not participate. They point to four Cs: client identification, conflicts of interest, confidentiality, and competency. And we’ve noted cases where too much interference had drastic consequences.
Estate Planning by Committee
But the team approach is commonly lauded these days. With professionals, too. Financial or tax advisers, being helpful, set up estate planning appointments, want to accompany the client to estate planning meetings, and even send helpful notes in advance explaining what the client wants in his or her plan. The helpfulness can create doubt. Is the client is actually in charge?
Estate plans should be about you. Only you. The one possible exception is If you are married or have a life partner AND your partner agrees with how the plan should go. Partners don’t have to agree, though. For the most part, in Arizona, married couples can do what they wish with their own portion of community property and their own separate property. Unmarried couples absolutely can have independent plans.
What happens to your property at death and who manages your life and property in the event of incapacity are important decisions. No one else should make them for you. Bringing family members, friends, or professionals in at the planning stage can create uncertainty about who’s doing the deciding. Clarity in estate planning is crucial.
Keep it Between Us, at First
Private meetings help. Fewer participants protect your privacy, naturally, but also your independence and ensures, to a certain extent, that the goals and desires expressed in the plan are actually yours and not someone elses. Private planning also helps protect your plan from challenges. Attorneys help ensure a plan is completed with the appropriate execution–the right signatures, witnesses, and notaries. Attorneys also help protect a plan from challenges of undue influence and exploitation. Imagine your estate planning process includes family members and professionals, and after your death, questions are raised about whether the terms accurately reflect your wishes. If the planning was a group effort, it may be difficult to prove decisions were made freely and not improperly influenced.
The better approach, even if you are certain what you want, is to gather opinions of others. Then decide for yourself. We often tell clients in the initial meeting that the wishes expressed at that time are just for the rough draft. Up until they sign the document, they can change their minds. And even then, so long as they have the capacity to understand, they can amend the documents in the future. (For an additional fee.) Then we say, go home, talk to people and let us know what you decide. We support having lots of discussions.
Planning: You Do You
Each client, however, must take care to keep their own wishes front and center. Have a discussion with your accountant about taxes, and then decide whether it matters to you. Talk with your financial adviser about the future of your investments and how they pass on at your death, and then decide how or whether you might want to control that at your death. If you are not sure who might want what, ask. Does anyone actually want the timeshares? The silver? The vacation home? The business? Do the people you have in mind want to serve as power-of-attorney agents, executors, or trustees? If several, do THEY think they can work together? Armed with information, you can then make better decisions.
An estate planning attorney can assist with clarifying your goals, perhaps letting you know about some you’ve not considered. Then he or she can craft a plan that will help ensure your plan goes as planned.
Share Later, IF You Want
Once the deciding is done, others can be brought in to help carry it out. Here again, though, proceed with caution. It is important to inform those who might have to act on your behalf that they may be called upon to serve. But the details of the plan? The details of your wealth? That’s typically not necessary to share.
Think through your circumstances. Consider that your family or financial situation might change. Your values might evolve. As a result, your estate plan might change. If you’ve made it a group project or shared it broadly, changes you make also should be communicated. That can, at minimum, get awkward. Feelings may be hurt. Relationships damaged. Loved ones will be comforted to know there is a plan and where to find it. It’s your plan. It’s OK to leave it at that.
