We saw a blog post from our good friend and colleague Tim Takacs this past week. He wrote, eloquently, about what to do with your estate planning documents after you sign. We agree with everything he said. But it got us thinking: what advice might we have about what not to do with your estate planning documents? We have a few suggestions:
DON’T hide your documents
You don’t have to share any of your estate planning documents. But you also don’t have to hide them — and we see too many cases where family members are unaware of what has been done.
Your health care power of attorney, particularly, should be widely distributed during your life. Everything else can sit quietly in the binder or folder we gave you when you signed. But family members should know where that binder sits. They may need to find it in a hurry one day.
Should your estate planning documents go into your safe deposit box? No. We always recommend that you keep those documents in an obvious place in your home. Family members will look first in the top left desk drawer in your study — that would be a good default place to keep them.
No study, or no desk? Okay, but you know what we mean. Keep your original documents at hand.
There’s nothing that prevents you from sharing the documents while you’re still alive. Generally, we favor that approach. Sometimes it can cause family friction, but more often it relieves any anxiety about not knowing.
DON’T write on the documents
Your daughter got married (or divorced) and changed her name. You’ve decided not to leave the $10,000 gift to your nephew. Instead, you want to increase your niece’s share to $25,000. Can you just make those changes on your will or trust?
NO! Set down the pen and step away from the documents. Please don’t mark them up.
It may be perfectly clear that you were trying to make the changes you scribbled on the documents. But your changes are probably ineffective, and you will have increased the likelihood of a legal challenge.
Maybe you are planning on coming back to see us, and you want to mark up the documents so we can discuss your changes. Once again, set down your pen. Make a copy and scribble on it. Or, better yet, just make an appointment; we are qualified to understand the changes our clients want to make, and implementing them correctly.
DON’T sign other documents
Tim Takacs’ article makes the excellent point that beneficiary designations are a key part of your estate plan. Once you sign your estate planning documents, you need to make sure your beneficiary designations are coordinated with your plan. But when you get done with that process, stop tinkering.
Your stockbroker doesn’t think you have the beneficiary designations done correctly? She might be right — but you need to call us to discuss before making changes. Your banker says you don’t need a “payable on death” designation but can just put your daughter on your account as a joint owner? Ask the banker which law school she graduated from, and then get in touch with us.
We hope you never have to go the hospital. If you do, though, we’ve prepared a very comprehensive durable health care power of attorney as part of your estate planning documents. It even includes a living will. Don’t sign the form the hospital admissions clerk hands to you — let her know that you have already signed advance health care directives. Feel free to call us for help on how to get those signed forms into the hospital record.
Are you considering adding your son as a co-signer on the accounts held as part of your living trust? No need to make changes in the signers — your trust takes care of that automatically. Please don’t sign a new signature card until after you’ve talked with us about the most effective way to accomplish your goals.
DON’T fail to share your documents with your next lawyer
It’s almost unimaginable to us, but we have heard of people who decide to visit a different lawyer for the next revision of their estate planning documents. We tried really hard to make sure that there were no loose ends, and that you had your entire estate plan in one place. Please make sure the next lawyer sees the entire collection of documents.
We know it’s a problem because of what we got from our new client Dave. Dave told us he had never signed a trust, but a quick title check showed that his house was in the name of a trust. He couldn’t find the documents, but assured us it was no big deal — he wanted to change whatever he’d done with that other lawyer anyway.
Don’t be like Dave. Make sure your next lawyer (and, for that matter, your stockbroker, your insurance agent, your financial planner and your mother) know what you’ve already done. Help make sure there are no ambiguities in your estate planning documents. Like the one case we had, where there were two documents labeled “First Amendment of the _________ Family Trust”.
DON’T forget what you’ve done
Your estate planning documents should help guide you in account titles and beneficiary designations. They can’t do that effectively if you don’t keep track of what you’ve already done.
That new condo you’re considering downsizing into? The accounts at the new bank you’re trying out because you’re tired of corporate misbehavior? That new electric car you are going to spring for? They all need to correlate with your estate planning documents. Have a trust? It should own most of your assets. No trust? Don’t put your daughter’s name on your accounts as a joint tenant “in case something happens.”
You know one really good way to keep track of what you have done, and whether your estate planning documents are up to date? Come back to see us. We miss you, anyway — it’s been six or eight years since our last visit, and we’re worried that maybe things have changed in your life.
