When it comes to Estate Planning in our lives, there is often a misconception that there is plenty of time to plan often leading to comments like “I will do that tomorrow.” We plan for college, we plan for our careers, weddings, baby showers and house-warmings, but how many of us truly plan for our family’s legal and financial future? As with all things that may not be pleasant to think about, it can become all too easy to procrastinate when it comes to thinking about our own mortality or that of our loved ones!
Not to pick on a generation exclusively here but for example, when it comes to the millennials here’s a statistic: According to a recent survey from Caring.com, 78% of millennials don’t have a will in place. However, it is a problem that is not exclusive to millennials and plagues many in every generation. The truth, is we all think we have time…until we don’t. So what happens if proper estate plans are not in place? If it is as Benjamin Franklin wrote that “Nothing is certain, except death and taxes,” or as Jim Morrison of the popular band The Doors succinctly sang it – “no one here gets out alive,” then why don’t people plan ahead for the inevitable?
People may not want to talk about death as it is an unpleasant subject, but the consequences of not planning ahead can be disastrous, frustrating and beyond stressful for your loved ones! It is worth breaking this down into components of an estate plan that everyone should have in place, as it truly goes beyond just a simple Will. Everyone’s situation is different, but below are the basics everyone should meet with an elder law attorney to properly discuss and put in place:
(1) Last Will & Testament
The importance of these specific documents are well-known. A Will spells out how you want your assets distributed after your death and it names an executor to handle these transfers. Without one, you will die ‘intestate’, meaning your state decides how to distribute your property and funds instead of you, generally starting with your parents if you’re single and childless (unless an account, such as your bank account, which designates a beneficiary or is held jointly.) If you do have minor children, you can name who you would want appointed to serve as their guardian. This is an important decision that you would not want to leave exclusively to the courts who may not understand the complexities of your family dynamic.
(2) Durable Power of Attorney
For single and healthy millennials as well as those from other generations, this may be even more important to have than a Will! In case of incapacity due to a difficult and serious illness or an unexpected accident, this document enables you to name the person or persons you would want to manage financial matters on your behalf if you were unable to do so directly.
(3) Healthcare Powers of Attorney
In case of incapacity due to a difficult and serious illness or an unexpected accident, this document enables you to name the person or persons you would want to deal with doctors and medical personal on your behalf if you were unable to express your wishes for care to directly.
(4) Living Will
Typically paired with your Healthcare Power of Attorney listed above, the Living Will defines your end-of-life wishes concerning life support, comfort measures and more. Both of these documents should include actually having a conversation with the agent or agents you have appointed as to what your personal wishes would be in in the event you were unable to express them yourself. With these 2 documents, you are looking to create the situation where your agent is merely expressing to a doctor or physician at end-of-life what your wishes would be and not trying to figure out what you would have wanted on their own without having had that crucial conversation. Communication is key! Without these last 2 documents in place, it is likely you will be kept alive artificially by default, regardless if there is a reasonable expectation of your recovery.
(5) Digital Assets Inventory
What happens to your digital assets when you die? Here is something you may not have thought about: A more modern problem which didn’t start to exist until the mid-1990’s and is a fact of life in our society now is the issue of digital accounts! We all spend an increasingly larger and growing portion of our lives online. Various social media pages, email, online shopping, banking, paying bills, dating, cryptocurrencies, the list goes on and on! Certain online providers like Facebook may allow you to memorialize an account, or in the case of Google, you may be able to appoint trusted contacts who can access certain types of data when you pass in certain conditions, but each account needs to be handled in a proper and thought-out way. Digital Asset Management is an practice area of increasing importance in estate planning that should not be neglected and goes way beyond simply keeping a list of passwords which may wind up being out-of-date by the time of your passing. It is all too simple to get locked out of online accounts, which may make obtaining access to personal photos or account information extremely difficult if not impossible. The right attorney should direct and guide you on tailoring the right plan to legally authorize someone to easily handle your ‘online’ estate as well. For certain more-recent generations going forward including Baby Boomers, Generation X, Millennials and others, this issue will continue to be a concern now and in the future.
Final Words On Getting Started:
Think about the person or people you would to appoint as executor in terms of your Will, or as your agent on powers of attorney for health or finances. Strive to be honest and objective with who you choose to appoint: The best person to make financial or medical decisions on your behalf and delve into your private matters, may not be the one you feel closest to! It is also best to research actual attorneys in your area who specialize in Elder Law. While it may be tempting to attempt to save money by going with online tools such as LegalZoom, the expression “ don’t be penny-wise and pound-foolish” would certainly apply here. As a word of caution, I have seen quite a lot of DIY estate planning documents come into the office that were grossly inadequate or just plain wrong for the situation that they were trying to protect against. These online services won’t always capture the nuances of your specific situation or adapt to changing laws. Food for thought: I may be able to pull up a video on re-doing plumbing on YouTube, but that doesn’t instantly and automatically mean that I am now suddenly qualified to do that myself in my own house! For more information on Estate Planning, check out this link: