Greenville Estate Lawyer: “Estate planning is a process, not an event.”
April 3, 2010
Lives change. Personal relationships change. Assets change. And certainly laws change. Why then is your current estate plan fifteen years old, or even five years old? To borrow a common quote about education and learning, estate planning is by its nature a process, not an event. If your estate plan was put into place greater than five years ago, you should think about a review.
As a demonstration of the estate planning as a process mantra, consider the revocable trust. One of my major pet peeves is the revocable trust. The revocable trust is a useful tool in the right situations. But when used in inappropriate situations, or even in the appropriate situation but with the wrong client, it can cause more damage than good.
The revocable trust requires meticulous record keeping, and a resolve to periodically review your assets to determine that ownership is properly vested in the name of your revocable trust.* If you hire an attorney to create a revocable trust for you and the above characteristics are not a part of your personality, you may want to reconsider.
I have in too many occasions seen the results of inattention to the requirements of the revocable trust. I have seen situations where there was not a single asset in the name of the revocable trust upon the death of the grantor. The result – probate was necessary, and legal fees were incurred in both creating the revocable trust and in probating the estate. Since avoiding probate is one of the oft-stated goals of the revocable trust, this is hardly a good result.
The attorney who drafted this particular trust was not to blame. On numerous occasions the estate planning attorney tried to get the client to transfer his assets to the revocable trust. There was written documentation of this. The client simply ignored the letters to his estate’s detriment.
Why am I posting about this? To hammer home the point that estate planning does not end once you have executed your documents. If you have a power of attorney in place and one of your agents passes away, becomes incompetent, or even moves far away, the appointment may not be appropriate anymore. If you have a Last Will in place and then have a child, or get married, or have a falling out with close family members, you should review that Last Will with your attorney. If you insist on having a revocable trust, then be prepared to monitor your assets carefully, and consider an annual meeting with your attorney to review any developments that warrant modification to the trust document or retitling of assets in the name of the trust.
Estate planning is not an event. To be most effective and avoid the most common pitfalls, estate planning must be considered a process. While it might cost you some money to schedule that annual meeting with your attorney to review your estate plan, the cost saved later will more than make up for it.
(*There are some types of assets that have no business being transferred to a revocable trust. Individual Retirement Arrangements, and qualified retirement plans should just about never be transferred to a revocable trust.)
Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.