The events of the last 12 months have raised questions about the meaning of normal. 2020 brought a worldwide pandemic that changed our lives in a split second. One moment we had dreams for the future; we were planning weddings, vacations, and parties. Then, suddenly, we were worrying about Zoom security hacks, masks, hand sanitizer and where we’d get our next roll of toilet paper.
This experience has reminded me how quickly “normal” can change and how even the best-laid plans can be destroyed in an instant. Many people make an estate plan soon after their children are born and don’t update that plan for the next 20 or 30 years. In these plans, parents often name their siblings as Trustees over money meant for their fully grown and capable children. They sometimes name their own parents as their Power of Attorney and Health Care Proxy and let that stand even though Mom and Dad may have passed away a long time ago. These are mistakes clients make frequently. Simply put, the constant changes that occur in their lives often render their estate plans ineffective and sometimes completely inadequate.
To avoid this, greater emphasis needs to be placed on the planning part by reviewing your estate plan periodically to make sure it is still working to accomplish your goals. There are some life circumstances that should automatically set off alarms in your head that it is time to review your plan. We are all guilty of hitting the snooze button occasionally, but now is the time to address these concerns. If the last 12 months of this experience have taught me anything, it’s that oversights happen as life goes on. Some common events that are often overlooked but should trigger an estate plan review include the following.
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Birth of a new child. The arrival of a new child can greatly affect your estate plan. When a new child is born it is essential to ensure that your plan addresses the newest addition to the family.
Marriage. Simply getting married does not allow your spouse to be a beneficiary, make financial decisions, or health care decisions. This means that if you became sick and were incapacitated physically or mentally, your spouse would need to go to court to become your guardian. To avoid the need to go to court, you need to prepare a Power of Attorney and a Health Care Proxy.
Divorce. A divorce may automatically terminate your former spouse’s authority to act under your Power of Attorney or Health Care Proxy. This could mean that you no longer have a Power of Attorney or Health Care Agent, which may put you at risk of needing a Guardianship. Unless a contingent beneficiary has been named, assets that you thought were taken care of will no longer avoid probate and may end up going to unintended heirs.
Real estate. Purchasing or selling real estate can greatly affect how your estate plan works. For example, a common component of many estate plans is a trust. However, for you to maximize the benefits of your trust it must be properly funded with your real estate. We commonly see cases in which a client’s trust owned real estate that was sold, and new property was then purchased. However, that newly purchased property was never put in the name of the trust.
Estate plans are not “set it and forget it.” Regular review and planning are a must. Change is occurring around you and if you don’t keep up, your legacy is at risk. Most estate plans are created with the goal of preserving and protecting assets from creditors, taxes, probate, and long-term care expenses. A systematic review of your estate plan will make sure that you are keeping up with the current state of the law and adapting your plan to legal changes so that your legacy is protected for your heirs.
If dust has collected on your estate plan, and you don’t even remember what it says, you should call an estate planning attorney to review your particular circumstances and adjust your plan accordingly. Keeping up with legal changes is a full-time job, but it is a job for an attorney, not you.
Attorney Jay Sheryll operates a private law practice in Riverhead that specializes in estate planning and elder law. Visit sheryll-law.com for more information.