A Good Plan Avoids Big Problems

Defensive Estate Planning: Best Practices and Techniques

Life is unpredictable, but your legacy doesn't have to be.

Important decisions regarding your health may one day lie in someone else’s hands. Your money and possessions will eventually go to someone else. It may seem strange to consider what happens following your death or possible incapacitation, but giving these ideas just a little forethought can avoid some big problems: lawsuits, delays, family infighting, and unnecessary expenses.

With strategic planning we can decide who we want in charge when we’re out of commission, and how much will be available for those who most need our support when we can no longer provide it. Given the complexity of our assets and relationships, these are not decisions we can afford to leave to chance.

Take the case of William: a 55-year-old senior manager in software development. William is married with three children, and has a mother who needs 24-hour medical care.

In addition to his worries of others, William is also concerned about his own health, due to a family history of strokes. With so many people depending on him, several concerns weigh on William’s mind: Who will make financial and health decisions for him if he is incapacitated? Will his children be able to receive the necessary education if he is no longer able to work? Will his mother continue to get the care she needs?

First Steps and Strategies

William’s first step toward more peace of mind is to acquire some life and disability insurance (either through his work or on his own.) This will make sure his family is provided for after he’s gone.

Next, William needs to get some documents that clarify his advance directives. These include power of attorney and health care proxy. The documents allow William to place a trusted person in charge of his financial and health care decisions for him in the event that he can’t make them himself.

LEARN MORE ABOUT GETTING A POWER OF ATTORNEY AND HEALTH CARE PROXY

Without these documents, no one will have a right to make decisions for William even though he is married. As a result, his family will have to go to court to get a guardianship order, causing delays, hassles, and stress.

It may also result in a heated conflict. William’s two youngest children are shared with his second wife, 40 year-old Jennifer. His oldest, 25-year old Alyssa, is from a previous marriage. Without legal documents in place, it is likely that Jennifer and Alyssa may fight over control of William’s money and his health care. However, by drawing up a plan ahead of time, William can decide who he wants to be his agent, thus extinguishing the potential for fights and litigation, and ensuring that his wishes are enforced.

A Well Designed Will

In case of death, William wants to ensure that most of his assets pass to his children. He is concerned that Alyssa will not be very friendly with Jennifer, and they will fight over control of his real estate. He is also concerned about Jennifer’s lack of financial savvy. After his death, she may enter a new relationship and may even give her own children’s money away to a new spouse.

To avoid such problems, William should write a will. This document can direct exactly how he wants his money to be split amongst his family, and when they might receive it. He can also name a Guardian and Trustee for his youngest children, in the event something happens to Jennifer, and they’re not yet able to live on their own.

With a Will, William can set very specific directives about how his family receives their inheritance. For example, he can set up a trust for Alyssa, to make sure that any money intended for her is separate from what Jennifer receives. He can arrange a specialized trust for his mother so that she can still receive an inheritance without jeopardizing her Medicaid benefits. And he can also set up a third trust for Jennifer which names a trustee who will manage the money for her.

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Other Important Considerations

Of course, William does not want a silly technicality to invalidate his plan.  To ensure that his documents perform as he wants them to and are found when they are needed William needs to take a few more steps.

The first is to hire a specialized attorney—someone familiar enough with the proper legal lingo to create a suitable plan, draft documents, and ensure proper execution. Although do-it-yourself legal websites can make documents that look easy to draft, they ignore many complications. For example, did you know that no state in America (except for Nevada) will accept electronic signatures on a Will?

A specialized and experienced attorney can create a plan that accurately reflects William’s individual concerns and circumstances, and closes any problematic loopholes.

Next, William needs to inform his family that he has created these documents, so they know what to look for if there is an emergency. Experts say that, in the event of sudden death, families often have no idea that their loved one actually put a plan in place.

His family should know about his will, but William would be wise to store his important legal documents with either his attorney or a trusted friend. While it’s tempting to keep these papers at home, it also invites the potential for tampering and loss.

Finally, William should make a list of his assets and his passwords. He needs to let his agent know where this information is stored so that in the event of his own incapacity or death someone will be able to access his money.

You can’t take it with you, but by making a few careful decisions before tragedy strikes you can make sure your family carries on with harmony and stability.

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Katya Sverdlov, CFA, Esq. is an attorney focusing exclusively on estate planning, elder law, special needs planning, and probate. Prior to becoming a lawyer, Katya spent twelve years working for several top Wall Street financial companies.  Katya can be reached at SverdlovLaw.com, 212-709-8112, or [email protected]. Her office is located at 30 Wall Street, 8th Floor, New York, NY 10005.