Virginia Elder Law

Tuesday, October 23, 2018

What Are The Two Most Common Estate Planning Mistakes?

Here is a scenario: A couple is preparing to start their estate planning. They start by pulling everything together they feel an attorney would want to see before their consult to get that process started, it  can seem overwhelming! It is not uncommon to worry about missing something important. The good news is that often most mistakes can be avoided. Your attorney is there to guide you from beginning to the end through this process, so don't worry.

Having said that, when it comes to 'mistakes' made in the estate planning process, there are really two common ones: 

(1) PROCRASTINATION: 

The first one really has nothing to do with planning, but rather, NOT planning. Procrastination is the biggest problem  in estate planning. People simply put it off or don’t even think about it. Everybody thinks they have time...until they don't. 

It is understandable: People don’t like to plan because it can be very uncomfortable thinking about your own mortality or that of your loved ones. Coming to terms with the fact that one day will be your last can lead to some strong emotions. Let’s face it; no one likes to think about possible incapacity or death. Throw in the fact that you have to talk to an attorney about this not pleasant subject and anxiety builds quickly.

The truth however, is that most of the estate planning problems encountered resulted from not putting your affairs in order, rather than mistakes made in the actual planning. Not to say that mistakes are never made, but certainly your family is far more likely to have to deal with issues relating to NO planning at all rather than poor planning. For those whose family members didn't put a will together ahead of time, for example, they are often unprepared for handling an estate as administrator with no written plan in place, the need to pay a fee to get bonded, etc. Imagine a situation where someone loses capacity due to dementia without ever having Powers of Attorney done, and the family find themselves instead going to court for a Guardianship which cost thousands due to court costs, and added time to get on the court docket, aggravation of yearly court-mandated accountings. This can be quite an invasive process! Made more frustrating by the fact that this situation could have been avoided by visiting an attorney to properly draw up the right Powers of Attorney.

(2) NOT BEING OPEN WITH THE ATTORNEY:

The second most common mistake comes from not being completely open with the attorney and disclosing everything about your situation. It’s not easy to sit down with a stranger and talk about all of your most private things, even when that stranger is an attorney who you are trusting to look out for your's and your family's best interests.Your attorney can’t solve your problem if he or she doesn’t know it’s a problem.

If you withhold things, something might get missed and that often leads to consequences. For example, what if someone meets with an attorney to have a Will done and leaves out or doesn't mention one of their children... It just never comes up in the consultation. Your attorney can only work with the information given!

If the decision on the part of the client to 'simply leave this one child out' is conscious and never discussed, and made in the client's line of thinking that you wouldn't mention that child because you would rather they just not inherit anything (due to their behavior in general, certain life choices, memory of past events that transpired, etc.) You have not solved the problem: You have instead created a bigger one for your Executor handling your estate later when you pass and the 'missing child' comes forth contesting the legitimacy of the entire Will in court.

The moral here is to get started in the process and be honest and open. The journey of a 1000 miles starts with one step! Contact our office to schedule a consultation


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