“So why did you finally execute a will?” Last week, this provocative question was in my LinkedIn feed, asked by someone in the funeral industry. One attorney posted that she eagerly awaited the responses. So far, there are none. Why? Because most people haven’t executed a will.
For years, I’ve heard statistics that less than half of all Americans have a will. Rocket Lawyer reports that 64% of Americans do not have a will and 55% of Americans with children do not have a will. When Rocket Lawyer asked why, the most common reason given by 57% was that they “just haven’t gotten around to making one.”
We all know that estate planning is important but not until a close friend or family member has an accident, gets cancer, or dies do we realize how urgent it really is. Are we going to be like the cobbler’s children who have no shoes? Ben Dattner, Ph.D., wrote an article called “Cobblers Children Syndrome in the Workplace.” According to Dattner, this syndrome is at work in organizations and individuals, such as the IT Consultant who uses outdated technology, or the anorexic who cooks great meals for others but won’t enjoy them. He points out that there may be a defensive aspect to this syndrome, saying “A person may develop a rigid and inflexible world view as a way of protecting him or herself from inner rebelliousness.”
I’ll state the obvious application of the defensive aspect of the Cobblers Children Syndrome to estate planning: We avoid estate planning to protect ourselves from facing the reality of death.
You owe it to your spouse and children to buy shoes, face death head on, and get your estate planning in order. Consider the following ten issues when you plan:
Get a Trust. A fully funded revocable grantor trust (commonly called a “Living Trust”) avoids probate, protects children and those with special needs, and can help reduce or eliminate federal estate taxes. For many people, a trust is the centerpiece of their estate plan; for others, a Will is all you need.
Get A Will. A Will allows you to direct the persons and or charities that will receive your assets upon your death. If you do not have a Will, the State of Michigan will direct (by the intestacy laws) how your assets will be distributed. Even if you have a trust, you need to have a “pourover” Will just in case your trust is not fully funded at your death. A pourover Will transfers your probate assets to your trust so that there is only one document that controls the disposition of your assets at your death.
Get a Durable Power of Attorney for Finances. Having a Durable Power of Attorney for finances gives your designated Agent authority to handle your finances. This is very helpful if you become disabled or incompetent. Without a durable power of attorney, a Court-appointed Conservator may be needed to handle your financial affairs.
Get a Durable Power of Attorney for Health Care/Designate a Patient Advocate. When you are unable to communicate your wishes regarding your own medical care, after 2 doctors certify this fact in writing, your patient advocate can act for you to make decisions regarding your medical and end of life care, hospice, dying at home, and pain relief. Designating your patient advocate may save your loved ones a trip to probate court to be appointed your guardian.
Plan for a Possible Lay-Off or Loss of a Job. Create an emergency fund that will get you through 2-3 months of your financial needs in the event your family’s major wage earner loses his or her job.
Obtain Disability Insurance. An accident or illness that leaves you unable to work can cause great financial difficulties, even if it is only a short-term disability. Long-term disabilities can be even more financially devastating. If your employer does not provide short- and long-term disability, investing in these products may provide needed income for your family when you are unable to do so.
Plan for Your Minor and Disabled Children. If parents of minor children die without a will or trust, the probate court will set up a conservatorship to protect assets inherited by the children. At 18, the children will receive their inheritance outright. Most people prefer to set up a trust that will set aside money for their children’s health, education and support, deferring ultimate distribution of funds until age 25, 30, 35, or later. If a child has special needs, a Special Needs Trust should be considered as part of the parent’s estate plan; this can be part of a revocable trust or a standalone Special Needs Trust. Part of planning for your children often includes determining how much of your children’s education you want to provide. Then, consult your financial advisor to assist you in making a plan to save money for college or other training/support for your child. Another major component of planning for minor children is to designate a guardian, the person who will care for them until they reach 18. This is a difficult issue for some families but a very important one that needs advance planning. If your children are over 18, don’t forget that they should do planning of their own. Durable Powers of Attorney can often avoid the need for your child to have a guardian or conservator appointed. Consider that even college kids should have their own Durable Powers of Attorney for Finances and Health Care.
Plan for Your Retirement. Work closely with your financial planner to adequately plan for your retirement. Check out a life expectancy tool at www.livingto100.com to see how long you can expect to live. If you have a long life expectancy, you may wish to save more money now, or work a few years longer to obtain higher Social Security benefits. Ask your attorney for a referral to a competent and trustworthy financial planner.
Plan for Medicaid. Before going into a nursing home, and before applying for Medicaid, consult an attorney familiar with Medicaid’s eligibility, divestment, and estate recovery rules. Getting proper advice at this time may save your family thousands of dollars.
Plan Your Funeral. Pre-planning, and possibly pre-paying, your funeral will take a burden off the shoulders of your loved ones. Decisions you make now will ease their load of decision-making during a difficult time. Consult your local funeral director for more details.
Planning for your disability and death is a rewarding process that will put your mind at rest and benefit your family for years to come.
Marlaine C. Teahan chairs the Trusts and Estates practice at Fraser Trebilcock. She handles a wide variety of matters including: drafting wills, trusts and durable powers of attorney; trust and estate administration; guardianship and conservatorship matters; and probate litigation. To learn more about how to put together your own estate plan, contact Marlaine at 517.377.0869 or firstname.lastname@example.org.