Thursday, May 14, 2020

Experienced lawyers write better wills

I recently had a client (not in for estate planning) mention their wills are over 30 years old.  I encouraged them to review it with an estate planning lawyer.  


First, laws change.  In the past decade (beginning 1/1/2011) there have been a number of changes in the law that affect estates.  Congress changed the estate tax rate; Virginia has enacted a number of changes, from “Digital Access” to completely re-writing (and changing the Code sections) on administration of an estate. While reference to olde code section still ‘work’, there are subtle changes that reference to the new section makes planning easier.

Second, case law changes.  The various courts have to review estate questions regularly and many write opinions which describe the problem, provide an answer, and explain why. Experienced lawyers use those opinions to adjust their advice to reflect current ways of meeting the client's objective.

Third, our lives change.  Are you Divorced from that spouse? Did that spouse die? Did you remarry? Does your new spouse have children? Each of these is a HUGE reason to review an estate plan.

Fourth, goals change. Many estate plans which were written when children are young place their money in trust until they are (hopefully) mature enough to handle it.  Those children have grown and may no longer need protection of a trust.  But there are grandchildren to consider, or someone may have a disability.

Fifth , assets change as well as the way the assets are ‘titled’ (whose name they are in, and whether the title grants automatic survivorship). Many people establish ‘living trusts’ as their estate plan, but don’t maintain them properly – they buy property in their own name, not the trust, which can screw up the whole plan.

My recommendation to my clients to keep their plan up to date:

ANNUALLY, Read your estate plan on a ‘significant anniversary date’ (wedding anniversary or birthday are suggested) to make sure it still says what they want to happen on their death. If it’s no longer a good plan, make an appointment with the estate planning lawyer.

EVERY FIVE YEARS Consult your estate planning lawyer to do a comprehensive review of the plan. This allows the lawyer to see where all the changes affect the plan and suggest modifications to the plan to meet the new laws, lives, goals and assets.  I suggest a ‘divide by 5’ year (birthday or anniversary - 50, 55, 60, 65, etc) or calendar (2015, 2020, 2025, etc.) to make it easy.

If A SIGNIFICANT EVENT occurs – spouse dies, child dies, they win the lottery, get (re)married. Call the estate planning lawyer for an appointment and review. Retirement qualifies as a ‘significant event’.

Estate plans are not ‘static’; they are not “carved in stone”. They are very fluid and need to change with the circumstances.  Consult your estate planning lawyer.

Notice I didn’t say ‘call your lawyer’ but ‘call an estate planning lawyer’ – almost all lawyers now ‘focus’ their practice on a particular area of the law.  Criminal defense lawyers don’t know the nuances of estate planning (and estate planning lawyers don’t know the nuances of criminal defense and have forgotten who ‘Miranda’ ever was).  Unfortunately a lot of lawyers who spend a lot of time practicing ‘other things’ will happily draft a will not knowing all issues they should address. Would you go to a podiatrist for brain surgery? Same with lawyers – get one who focuses on estate planning.

No comments:

Post a Comment