In my opinion, the best time to prepare your estate documents is now. It is not unusual to think preparing estate documents can wait, but you are doing yourself and your estate a disservice.
For example, Frank (true story, changed name) died suddenly at age 63. Frank had accumulated interest in his business. He had not, however, maintained his life insurance or even updated his will. Two out of four of his children were active in the family business. No provisions were made for the family business. Because Frank had no provisions for how the family business was to be run in his absence, or who was to run it, squabbling ensued and 18 months after his death, the business, which had not been run well, was sold for half its value.
Even though Frank had accumulated sizeable net worth, his wife, who had no independent means of support, had to deal with the diminished estate, which was left for her remaining years.
Although it is far from absolute, there is quite often one partner who handles the finances.
Unbeknownst to the other partner, and sometimes even to the partner who handles the finances (pays the bills, investments, etc.), the financial responsibility includes wills and trusts and other mechanisms as needed. Frank’s failure to provide a plan for his family cost them time, money, frustration, as well as the grief they were already enduring.
Furthermore, more often than not, it seems the female spouse is the person left unprotected.
The financial partner/spouse needs to consider how the surviving spouse will be able to pay bills, raise the children, if any, provide for their own sickness, and life expenses.
When the relationship is second to another spousal relationship, prior children and prior promises must be considered.
Most of my clients tell me they believed one of the following statements until something caused them to realize that they cannot put planning off.
1) Everyone in my family (step-family and family) gets along, there won’t be any problems.
2) I have no children, so no problem.
3) My children are grown up, they don’t need, or better yet want, anything I have.
These statements are wishful thinking, and for the most part far from true. It is not uncommon for a child, ex-spouse, or relative to rise up and declare “hey, I was promised the boat, that’s supposed to be mine!” when it was not left to that individual. Or, what about vacation property, which is located in another country. Did you meet with an attorney in that country about how to take title and how to pass it on? Different countries have very different rules, which can make conveyance very difficult. In one instance, I had to track down the California consulate for Costa Rica and pay for them to come to Tucson and acknowledge, in effect, the transfer of title to my client. Had my client not had contacts, this never would have been accomplished. Don’t forget there are always cultural considerations when requesting favors of the consulate.
To those of you who are not the financial partner, I urge you to request copies of the documents, wills, trusts, or whatever, that have been prepared to protect your assets and provide for you should your spouse have an emergency or unexpectedly die. Of course, no one wants to make these arrangements for death, but it is a lot easier and less stressful if affairs are put in order, which can always be amended as needed, than for the grantor to be trying to get it all done at the last minute instead of spending time with family, at church, and with loved ones.
(Editor’s Note: Drue Mogran-Birch is a family lawyer, practicing for more than 30 years. Morgan-Birch owns her own law office, and can be reached at 620-9367, or at firstname.lastname@example.org.)