Top 10 Uncomfortable Estate Planning Issues You Don’t Want to Consider

To help implement your wishes, trusts and estate lawyers need to ask some tough questions. Some of them might make you squirm.

Thinking about the following issues in advance can help you prepare for a meeting about your estate plan.

#1. What if you all die in a common disaster?

Even if you are certain about where you want your estate to go – commonly to a spouse or partner, followed by children and grandchildren – you should also address the “just-in-case” scenario, for when your immediate family are all caught in a common fatality.

For some clients the natural answer is “my parents,” “my siblings” or a particular charity. For others it raises issues that could take years of therapy to sort out.

A client may be estranged from his or her family; not have other close friends; or have been too busy to develop a commitment to a charitable cause. For these people, addressing this remote possibility becomes a stumbling block to completing an estate plan.

#2. Have you told your lawyer about all the important people and relationships in your life?

A long time ago, I was involved in major litigation in South Australia for some of my clients, whose accountant had committed suicide after embezzling client-funds.

Initially no-one could figure out what he had done with the missing money. He hadn’t gambled or lived the high-life. But it eventually came to light that he had secret families (yes, plural!) living in different parts of the state.

He had branch offices of his accountancy practice in different regional towns, and he would stay at each place for a few days each month.

It turns out that he had a wife, an ex-wife, a mistress and a girlfriend – and he had two children by EACH of them!! Only the wife and ex-wife knew about each other.

After his death, there were 8 kids and 3 ‘partners’ all claiming against his deceased estate!

Whether you are married or single, your lawyer may prod and ask if you are in a relationship with someone and if it has a legal status such as civil union, domestic partnership or even a same-sex marriage.

There may be legal obligations that come with these relationships that you need to know about.

Your lawyer can’t educate you about the rights and obligations unless they have the full picture.

Many times I have really pressed my client to confirm that they REALLY are divorced, only to have a client realise that he or she never actually did get around to formally finalising their divorce.

This is information your lawyer needs to know or a long drawn-out lawsuit could erupt after your death, consuming your estate in legal fees.

You might think that this is what lawyers hope-for, but it truly isn’t. It‘s tough to watch someone’s legacy destroyed.

#3. Who will raise your children if both parents die?

A number of clients have told me that they waited until all of their children were grown to discuss estate planning because they couldn’t figure out whom to name as a guardian.

If you fail to name a guardian, then the court will do it for you, based on what it deems to be in the best interest of your child.

Unless you have confidence that a judge who never knew you has better judgment than you do about matters involving your children, it is best not to stick your head in the sand for 18 years.

#4. Do you have genetic material on ice?

When thinking about children and descendants, science is pushing the boundaries of those definitions. Even if the lawyer doesn’t ask, you should disclose “what’s in the freezer.”

In other words, do you have genetic material, such as fertilised embryos, eggs, or sperm, preserved for later use? If you do, it is critical to consider whether you want to provide for beneficiaries conceived after your death.

And if you do, for how many years do you want to leave the window open for that birth to take place?

There are legal and logistical limits and complications to work out and your wishes might not be possible to carry out. But they should be openly discussed with your estate planner.

Litigation involving children conceived after the death of a legal parent and ownership of genetic material are hot areas of litigation that could be avoided if disclosed, discussed and agreed upon ahead of time.

#5. Have you have ever made large gifts or loans to others?

Often this is a question that we don’t want to think about, especially if we are supporting family members or friends who have fallen on hard times, aren’t able to support themselves, or got into financial trouble.

Your lawyer isn’t asking this question to be nosy. It is important to get this information on the table to get the advice you need to deal with a claim against – or for – your estate down the road.

#6. Who is going to take care of your pets?

You may not need to set up a full-blown pet trust, but you may need to set aside sufficient funds to be put in trustworthy hands to take care of Fluffy or Fido.

If you have racehorses or animals with long life expectancies, you may need more sophisticated planning, including a pet trust.

Or, if you don’t have someone you can rely on to take on your pets, especially if you have 17 cats, you will need to find an organisation to take care of your fur-babies for the remainder of their natural lives. Your estate planner can help you do this.

#7. When do you want the plug pulled?

Almost certainly your lawyer will ask you to sign an advance care directive concerning “Do Not Resuscitate” commands. We each have a definite idea as to when quality of life has diminished too far.

It is helpful to share that information with your healthcare agent who has to be a part of carrying out instructions.

If you don’t share that information, people may be paralysed with indecision over such an agonising choice, and inadvertently let loved ones linger-on, when if they had had more insight they might have ceased aggressive medical intervention sooner.

#8. What are your passwords, user names and security questions?

Until a few years ago, we didn’t really have to worry about our digital life. Your e-mail and social media accounts would just go dormant.

But we are living more and more of our live online. Some folks have self-published books that are only accessible on line.

Journalists and photographers may have their life’s work on a hard drive or saved in cloud storage.

Plus there could be bank accounts you only receive e-mail statements for, blogs, Twitter, photo storage, and countless other financially and emotionally valuable assets accessible only by computer.

Your lawyer can help you figure out what needs to be preserved, what can be left to lapse, and who should be able to access these various accounts.

There are a number of cloud storage sites, such as OneDrive, GDrive and Dropbox, where you can store a lot of important and sensitive information and documentation.

Then there are Password Managers where you can store your passwords, and then you only need to give someone the master password to access that information.

Alternatively, you can leave the password to access your personal information in a safe place such as with your lawyer.

Dealing with digital property is still in its infancy, and technology is ever changing, so there are no perfect solutions. But you and your estate-planning lawyer can explore the options and pick the one you are most comfortable with for now.

#9. Did you enter into a Binding Financial Agreement?

You might know these document as prenuptial or postnuptial agreements. These documents may be long forgotten. But after your death, a disgruntled relative could bring them to light them and derail your best estate planning intentions. Even if you don’t consider them relevant any more, disclose them to your lawyer.

If they really aren’t relevant, your estate planning lawyer can help you legally terminate them. But to provide that assistance, the lawyer has to know that the documents exist.

#10.Have you had any serious or chronic health issues?

You might not think this is relevant to estate planning. No, your lawyer isn’t wondering if he or she needs to put off a vacation for your imminent probate.

Rather, estate planning is not just about after you die. It also relates to the later phase of your life, where your health might not be at its best, and you might need increasing assistance to deal with your accommodation, lifestyle, independence, transport, medical treatment and health care.

So your lawyer needs to know who you would want to sign documents and make decisions for you if you cannot do so for yourself.

Ask yourself: which nursing home would you want to go into; who would your carers be; what sort of medical treatment would you want to have towards the end of your life?

Whether or not your lawyer concludes with the catchall question, “Is there anything else I should know?” don’t be afraid to speak up. Chances are you’ve covered a lot of territory.

Conversations can be circular, rather than linear. Maybe you started to say something and got distracted. Or perhaps you haven’t gotten to something you expected to cover. That additional little detail might not be relevant. Or it might make all the difference.

Prepare for these conversations, and speak up. That way, you are helping your lawyer to help you protect yourself, your family and your assets.

We’re getting older. Maybe our best health is behind us. If we get sick, or suffer some financial misfortune, our ability to “bounce-back” may not be what it once was.

We need to get serious about planning for our own future, and for the future of our family. We need to protect our assets, plan for retirement, create a succession plan for our businesses.

You know you must do some essential planning to protect yourself & your family. Don’t put it off, or you could find yourself on your deathbed wishing you had just one more hour.

Death and taxes (and illness) may be unavoidable … but they don’t have to ruin your family or your business. Make the effort to protect the people you really care about. Call us to create an integrated estate plan. And do it NOW … before it is too late.

Genders and Partners is the oldest law firm in South Australia, established 1848. Contact us to learn how to protect yourself, your family and your assets through modern integrated estate planning solutions, by visiting our website today and schedule a free no obligation telephone consultation to find out how they can help you and yours.

Remember – any mistakes you make in your estate planning documents won’t become apparent until after it’s too late for you to fix them. Get proper advice, and do it right.

It is also vitally important that you keep your estate plan up to date – it is not a set-and-forget exercise.

To learn how to protect yourself, your family and your assets, by creating a professionally-made estate plan, claim your FREE 15 minute Telephone Consultation

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