Among other benefits, your will and trust can prevent fights. This estate planning attorney explains:
A last will and testament can be a huge fight for families
What will happen to your house when you die? An estate attorney can make a plan. But if you don’t have an estate attorney, you may be surprised at how many things can go wrong.
Most of the time, I meet clients at a time when they are in the most painful part of their lives. Many people have recently had a serious medical diagnosis and are trying to consolidate their assets and make their own decisions before it’s too late.
Others have lost a loved one, and they are now enduring the confusing, expensive, and sometimes protracted process of probate.
I pursued this field of law because I do not like acrimonious disputes and because I think it is important to make a difference in the lives of people rather than getting a criminal out of jail. With inheritance, at least, I know I will be working directly with real human beings who appreciate what I do.
I represent clients who want to challenge their will or trust and those who plan out a document that can survive legal action. It’s a job that puts me at the center of a bunch of family arguments.
I witness these candid moments up close and personal because every family is complicated in its own way.
Why do I believe everyone – even those in their 30s and 40’s – should be thinking about their estate plan?
When I was taking trusts and estates courses in law school, I found that, compared to my other classes, probate and estate planning aren’t theoretical. This affected people’s day-to-day lives, it wasn’t dealing with abstract concepts or horrible distasteful clients. It offers a personal touch to deal with real people and real cases. I was attracted to that.
It seems simple when I think about a will or other inheritance paperwork. “Okay, we just follow the instructions left by the deceased.” That’s not the case.
What are the typical issues that pop up that force people to go to court?
I think the first assumption is that if you have a will, then your next of kin should not have to consent to anything: “My will will be accepted by the judge.” The problem is that your next of kin spouse, kids, and parents need to be notified if you have a will or not. They have to sign off on the plan after they read this paper. That shocks people.
When someone calls me for estate planning, and tell me they want to leave everything to one of their kids, I ask them, “Okay, how many kids do you have?” They ask, “Why does it matter? I haven’t spoken to some of them in 30 years…” If you want the kid that’s left everything to receive your estate, you’ll have to locate those other kids.
It’s important to be able to recognize when someone is having an emotional reaction to something you say. I start from that premise. I acknowledge that this death is recent, it’s hurtful, and that they are grieving.
I’m not a psychologist, but I say something like, “It’s going to take some time to get through this, but we will get through it.” There is a light at the end of the tunnel.
Estate planning is tougher for me. I had a gentleman call me today whose father has Alzheimer’s. My wife’s mother has Alzheimer’s. You get clients who know that their parents are terminal, and I try to give them peace of mind. “You’re coming in here to make sure your children have a smooth transition, so they can remember and honor you without having to deal with the courts.” Hopefully I leave them with that comfort.
How do I deal with clients who have lost a degree of mental capacity?
That’s a big deal. If someone isn’t able to tell me the dates, the president, or their assets which has happened plenty of times I’ll have to turn them down.
I had someone who I created an estate plan for, who when it was time to sign, thought we were going on a fishing trip, and I said I couldn’t do anything. If it’s borderline, you try to find a lucid moment. Do they really know what they’re doing? Do they know why they’re doing it?
Sometimes I’ll bring in a doctor to confirm whether or not they have capacity, and other times I look to see if anything is likely to be contested, because I want to be extra careful.
We try to educate people that you shouldn’t wait until you’re in your 90’s to plan your estate. Get it done in your 30s, 40s, and 50s. You don’t want to do it when it’s too late.
It’s more important to think about estate planning when you’re in your 30s and 40s than when you’re in in your 70s. If you have minor children, your assets need to be managed by somebody for the benefit of your kids. Otherwise, their inheritance is essentially locked up by the court, and everything is released to them when they turn 18.
Any time you mix family, hurt feelings, grief, and money, it’s a recipe for disaster.
I’ve been involved in plenty of those, on all sides. It makes me appreciate functional families a little bit more.
In contrast, there are others where I feel like I’m dealing with dysfunctional families. One client wanted his entire estate to go to his daughter, and she didn’t care how much he spent on her. He’d already given her $1 million before he died. That’s pretty messed up.
I see people who say, “I want everything to go to my kids,” or, “I want everything to go to this one kid,” and everyone else is okay with that. It makes me want to ask them, “What did you do right?”