By Robert J. Green, Esq.
If you are staying home as much as possible but also want to make sure your estate planning and other legal documents are complete and in order, you are not alone. At our law firm, we have been hearing from many clients who are concerned about whether they have what they need in place. While we should all aim to have our legal planning in order at all times - for some, the COVID-19 Pandemic is a very loud wakeup call that they need to complete or revise their documents.
But how do you know if you have what you need in place? And how do you make additions or changes if you need them under the current circumstances? I'll use my space here today to try to address both of those questions.
Estate planning consist primarily in putting into place those legal documents that each of us need to deal with what happens if we become incapacitated and what happens when we die. Establishing those documents is just the first step though. You should also be keeping those documents up to date as life goes on. If you have estate planning documents in place and have any doubt about whether those documents are complete or up to date, normally the best thing you could do is to bring them to an estate planning attorney to review and discuss with you. But how do you do all of that while trying to stay home and not go to an attorney's office (many of which are closed now)?
Some law firms, like mine, have put processes in place that allow you to work with an attorney to get this type of planning completed now, even if the firm's office location is closed.
However, if you intend to review your basic estate planning documents yourself, consider the following steps to help determine whether your documents are in good shape. The documents reviewed below represent the foundational documents used in quality estate planning. There are other documents that are used in estate planning, and it may be difficult to know whether you need any other documents without consulting an estate planning attorney.
Step 1: Examine your Will. A "Last Will and Testament" ("Will") is a document used by you to state what should happen to your possessions and assets when you die, as well as who it is that should carry out those instructions you've left. You should look to see who you have placed in charge of your estate (called a "Personal Representative" or "Executor/Executrix"). That person will work under the supervision of the Probate Court Judge to administer your estate.
Next, you should identify who you have named as your first and second alternate to the primary Personal Representative. It is important that both the Primary and the alternate Personal Representatives are capable of handling the administration of your estate - and are people you trust.
Finally, you should review the "distribution" provisions of the Will. These are the provisions that state who will receive what from your estate. Is everything as you want it currently? If those provisions were put into effect tomorrow, would you be satisfied with the outcome? If not, then it is time to meet with a professional about some updates. One note: if you also have a Revocable Living Trust (discussed below), the distribution provisions of your Will are most often drafted to simply direct the transfer of any assets subject to probate into your Revocable Living Trust.
Step 2: Examine your Revocable Living Trust. The most common type of trust used in estate planning is known as a "Revocable Living Trust". Not everyone has a Revocable Living Trust, but those who do are trying to avoid the need for their estate to go through a court-controlled process called "Probate."
If you have one, review your Revocable Living Trust to determine who you have named as the Successor Trustee, as that is the person who will have control over your Trust if you become incapacitated, and also upon your death. A Successor Trustee, like the Personal Representative of a Will, should be someone capable of administering your estate, and someone you absolutely trust to carry out your instructions. And, as with the Will, you should have alternates listed in case your primary Successor Trustee is not able or willing to perform this job.
Finally, you should review the "distribution" provisions of the Trust, just like you would have for the Will. These are the provisions that state who will receive what from your trust after your death. Do those provisions reflect your current wishes?
Step 3: Examine your Power of Attorney Documents. Power of Attorney Documents typically state who your decision maker will be if you are alive, but unable to make your own decisions due to some sort of incapacity. These documents generally come in two categories - financial decision making and health care decision making. With both your financial power of attorney and your health care power of attorney, you should review who you have named as your Agent (sometimes called "attorney-in-fact") and who you have named as your alternate Agents in case your primary Agent cannot do the job.
Step 4: Examine your Living Will. Not to be confused with a "Last Will and Testament," a Living Will is used to state what ongoing life support measures you do or do not want administered to you if you are terminally ill and your death is imminent, or if you are in what is called a "persistent vegetative state." Does your Living Will correctly state your wishes for what life support treatments you do or do not want administered under the relevant circumstances?
As we all try to be as prepared as possible for whatever comes next, do not hesitate to speak to a qualified estate planning attorney if you have any doubts about whether your documents are up to date. Some law firms, like mine, are currently offering free telephonic consultations concerning creating or reviewing estate planning documents. If you can, take this important time to be sure your planning will accomplish what you intend.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.