Contributed by Steve Butler.
For many people, the thought of meeting with an estate planning attorney strikes fear into their hearts. It can be uncomfortable to even consider the possibility of no longer being able to manage your own affairs, let alone no longer being alive, with your property and accounts passing to someone else. For far too many people, this causes them to put off the crucial task of estate planning. As a result, they are utterly unprepared when something unfortunate happens to them or their loved ones. And let’s face it: All the legal speak can be confusing and intimidating. Do you need a will? Do you need a trust? Or do you need both? What about powers of attorney? And what the heck is a “living will”?
We are here to reassure you that estate planning is not as scary as so many people think it is. For most people, their fear is the result of the unknown. Not knowing what you are going to encounter at an attorney’s office frequently leads people to imagine all kinds of horrible scenarios and ultimately refuse to pull the trigger and set up an appointment. Forewarned, though, is forearmed. By explaining some of the common questions you might encounter when you meet with an estate planning attorney, we hope to help you prepare for your first estate planning meeting and alleviate some of the fear and anxiety that accompanies it.
Some Common Questions
What keeps you up at night? Though this might seem like an odd question for an attorney to start with, another way of putting this is, “What do you find yourself thinking or worrying about most often with regard to your property, your family, and your future, as well the future of your loved ones?” What the attorney is trying to find out with this kind of question is your motivation for meeting with an attorney in the first place. By identifying your underlying concerns, the attorney will be better able to bring the right legal tools to bear in addressing those concerns. In some cases, the attorney may discover that your most pressing concerns cannot be addressed with legal tools but may require the help of financial, tax, or even healthcare professionals.
Maybe you are at the attorney’s office merely because your financial advisor or tax advisor has told you that you need to get an estate plan in place. Perhaps these professionals have considered your finances and your potential future tax liability and are worried that without the tools that only an attorney can provide, there may be a significantly higher tax bill for you or your family in the future.
Or perhaps the thing that keeps you up at night is concern for your children. Maybe one of your children has a really rocky marriage, and you are not sure if they will have the financial ability to provide for themselves and their children if the marriage breaks up. How can you protect whatever amount of an inheritance may end up passing to that child from a divorcing spouse? Or maybe you have a child who has special needs and will have significant medical and living expenses in the future because of their condition. Or perhaps you have a child that cannot seem to get ahead in life, has substance abuse issues, or is simply irresponsible with money and regularly needs your help to get back on their feet and headed in the right direction.
If these are the kinds of things that keep you up at night, an attorney is going to want to understand your particular circumstances in order to properly draft legal documents that address your concerns.
Experienced estate planning attorneys spend ample time with you asking lots of questions to understand the particular dynamics of your family. These types of questions help the estate planning attorney determine where they should spend their time and effort to design an estate plan that will be perfect for your family and address your specific concerns, rather than just telling you what your concerns should be.
Worst-case scenario questions. Another question your attorney may ask might go something like this: “Imagine yourself on an island with your spouse, your kids, your grandkids, and even great-grandkids for a huge family reunion. Then imagine that a meteor came out of the sky and hit the island directly, killing everyone.”
Why on earth would an attorney paint such a grim picture? This is actually an important question to help you identify where you would want your money to go if you were to pass away and had no remaining natural heirs to inherit your money. This is not entirely theoretical, as there are real-life cases of entire families perishing in a disaster, for example, in a boat or plane accident. Each state has a default law that determines where the money and property of someone who has passed away with no heirs should go. If you do not like what the legislature has decided for you on this question, you may want to change it in your estate plan to ensure your property only goes to your favorite cousin or aunt, a best friend, or your favorite college or church.
Death and remarriage questions. A common line of questioning often includes the following type of scenario: “Imagine that you or your spouse were to pass away, and six months later, the survivor of you meets an old high school sweetheart who is single. A romance blooms, and they decide to marry soon after. How comfortable are you with the possibility of all of the money and property you acquired during your marriage becoming jointly owned by your surviving spouse and their new flame? Do you have any concerns about your spouse later dying and leaving everything to the high school sweetheart either intentionally or inadvertently?” If you leave everything that you own to your spouse, and that spouse remarries without taking certain legal steps, your spouse might put what you have left behind at risk of ending up in the hands of a total stranger rather than in the hands of your children or your other intended beneficiaries. By identifying these concerns through this type of questioning, an attorney can help you take steps now, while you are both alive, to ensure that your property is as protected as possible. You will have peace of mind that in the event of a remarriage, or even in the event of a lawsuit against the surviving spouse, you have taken the necessary steps to protect your property from being lost to a new spouse or to creditors or predators, and have ensured that what you leave behind will take care of your spouse until they pass away, and then will go to your chosen and intended beneficiaries.
Decisions about minor children. Another extremely important issue an attorney will raise is who should care for your minor children if you no longer can. Related to this question, the attorney will want you to consider who should manage your property and accounts for the benefit of your minor children in the event of your death or disability. Is it best for the people raising your children to be in charge of that money? Or will that invite potential financial abuse and exploitation by those guardians? It may make better sense to have a professional or another family member manage and distribute that money while someone else raises the children.
Healthcare decisions. Your estate planning attorney may also ask who should make healthcare decisions for you if you no longer can. This will require you to imagine yourself in a situation where you are receiving healthcare services but are no longer able to communicate your wishes regarding your care. In that case, do you want your spouse making those decisions? Or if you are not married, should it be a family member or a close friend?
Your attorney can help you explore the various healthcare scenarios you may encounter as well as the kinds of decisions you are comfortable entrusting to a healthcare agent and those that should not be made by an agent but rather in advance, by you, and documented so that healthcare providers will know what your wishes are with regard to certain types of treatments. Perhaps you never want to receive chemotherapy, radiation, or electroshock therapy. Or perhaps you never want to be placed in a nursing home and would prefer that your money be used to keep you in your own home for as long as possible. If these are decisions you do not want to leave in the hands of others, an attorney can help you identify these scenarios and document your choices.
These are just a few of the questions you may encounter when working with an estate planning attorney. Understanding their purpose will help you prepare for a successful and productive meeting. While some of these questions and scenarios may make you feel uncomfortable or even a bit fearful, doing the hard work of thinking through these kinds of scenarios and how you want them handled is an important first step toward responsibly planning for death and disability, which every one of us will eventually face. Trust us, your loved ones will be thankful for your efforts.