November 2018

What NOT To Do With Your Estate Planning Documents

By Bernard A. Krooks, Certified Elder Law Attorney

 

Much has been written about what to do with your estate planning documents once you sign them.  We thought it would be a good idea to discuss some things that you ought not to do with your estate planning documents once they are signed.

 

Don’t hide your documents.

While it’s not necessary that you share your estate planning documents with family members or others, it is critical that they know where to find them in the event something happens to you.   For certain estate planning documents such as a living will, health care proxy or power of attorney, it usually is a good idea to discuss these documents with your family and perhaps others, especially individuals that you appoint as agents to make decisions for you if you become incapacitated.  This will increase the likelihood that your wishes will be carried out.  Your will or other estate planning documents don’t necessarily have to be shared with anyone prior to your death, however, your nominated fiduciaries (executors or trustees) should know where they are.  While you may certainly choose to keep your papers at home to provide easy access, keep in mind that if your will is not able to be found upon your death, there may be a presumption that it has been revoked which can wreak havoc on your estate plan.  In many cases, it is better to ask your lawyer to hold your original will in a fire-proof safe at his/her office.  This could make things much easier for your heirs upon your death.  Note that keeping the will in the lawyer’s safe does not obligate your family to retain the services of that lawyer to assist with the administration of your estate.  That decision will be made by your executor.

 

Don’t write on the documents.

This is one of those things than can really do damage to your estate plan.  Let’s say you want to make changes to your will because you have a new grandchild, your son got divorced, or for whatever reason.  Please do not take out a pen and write on your will to make the changes!  There are laws regarding how you make changes to a will and who must witness those changes.  While you may think your changes are simple and that you have written them down clearly, if the changes were not done in accordance with the law, they will not be honored and could affect the integrity of the entire document.  It could also increase the likelihood of a legal challenge thereby costing your estate thousands of dollars in legal fees.  If you want to make changes to your documents after they are signed, it is very important to discuss these changes with your lawyer and make sure that they are done properly.  There is no problem writing down your proposed changes in preparation for the discussion with your lawyer, just don’t write them down on the will itself.

 

Don’t sign other documents that could affect your estate plan.

As we have pointed out numerous times over the years, beneficiary designations are a key part of your estate plan.   It is vital that your overall estate plan is coordinated so that beneficiaries of your IRA, bank accounts, etc. are aligned with your estate planning goals.  Sometimes, by signing or changing a beneficiary designation you may inadvertently change who gets that property and it may not be who you think.  To do this right, it cannot be done piecemeal.  Your advisors must work together to carry out your wishes.   So, if your stockbroker or financial advisor or anyone else suggests that you change your beneficiary designation on one of your accounts, it is imperative that you check with your estate planning lawyer to make sure that change does not frustrate your estate planning intentions.

 

Estate planning is a process.  Signing your documents does not end the process.  There is much more involved.  Your estate planning documents should not be filed away somewhere, never to be looked at again during your lifetime.  Over the course of your lifetime, you may choose to make changes or modifications to your estate plan based on changing life circumstances.  You’ve worked very hard to accumulate your net worth, isn’t it worth the time and effort to make sure it goes to the people you want?  The best way to do this is to establish a relationship with a competent estate planning attorney and maintain that relationship over your lifetime.

 

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven year, past President of the National Academy of Elder Law Attorneys (NAELA), past President of the New York Chapter of NAELA and also served as chair of the Elder Law Section of the New York State Bar Association. He has been selected as a “New York Super Lawyer” since 2006. Call 914-684-2100 or visit elderlawnewyork.com.

 

 

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