By Andrew Cobin of Cobin Law

Few individuals want to make the government richer at the expense of their loved ones and allow others to take control of their affairs.  Unfortunately, these are common results of failing to have a good estate plan.  In his article, Top Ten Mistakes Made in Estate Planning, Ronald P. Kendall enumerates 10 common mistakes that both attorneys and individuals make in the estate planning process:

1. Thinking that estate planning is only about avoiding estate taxes

A good estate plan reflects your goals and is tailored to address the circumstances of your life.  This may include avoiding estate taxes, but there are many other considerations.  There are typically 3 phases of life to plan for:

  • Alive and well
  • Alive and not so well (disability)
  • Not so alive (death)

2. Failure to realize that a will guarantees only probate

Probate is an infamously expensive, long, and public process.  During the probate process, one loses control to the judge, the beneficiaries under the will (who can agree to a different disposition than that provided in the will), and the surviving spouse (who may remarry and pass your assets to his/her stepchildren).  Avoiding probate may be one of your estate planning goals if you wish to relieve the burden of lost time, money, and privacy from the shoulders of your loved ones.

3. Failure to have an estate plan of one’s own

Two common and important ingredients to a good estate plan are a will and a trust.

Without a will, a person dies intestate, and his estate is passed according to state law (also known as “an estate plan by default”).  North Carolina intestate succession law presumes that a decedent would have wanted his estate to pass to his surviving spouse and his closest living relatives.  Wills are ambulatory, meaning they don’t take effect until you die.  Through a will, you can only dictate how probate property will pass; a will has no effect on assets controlled by contract (e.g. POD/TOD accounts and life insurance proceeds).

Unlike a will, a trust can be funded and take effect immediately – this is called a Living Trust.  You can transfer almost any type of asset into the trust, and its terms are very flexible.

4. Failure to choose the correct fiduciary

A fiduciary is an individual or entity that acts on your behalf and must act in your best interests.  Some important fiduciaries to consider in estate planning include:

  • Personal Representative: carries out the directions you provide in your will
  • Trustee/Successor Trustee: custodian of trust property and administrator of trust
  • Health Care Agent: makes decisions on your behalf regarding health care actions when you become unable to make them yourself
  • Financial Agent: makes decision on your behalf regarding finances
  • Power of Attorney: makes decisions and acts on your behalf regarding any number of situations

5. Failure to title assets properly

When your assets are not properly transferred to your trust, it is just as if you had never created the trust.  As a result, your plan will not work!  Proper funding ensures that there are no assets that have to pass through probate unless you want them to.

6. Failure to plan for creditors and predators

There are 3 common circumstances today that individuals often forget about during the estate planning process:

  • Divorce – without proper planning, your assets could eventually end up in the pockets of the relatives of your ex-spouse
  • Second Marriage – without proper planning, there is no guarantee that when you die, your surviving spouse will provide for your children from a prior relationship
  • Judgments – without proper planning, your assets could be reached by someone suing your loved one after you have passed

7. Failure to plan for disability

It is important that you make decisions now regarding what will happen to you and yours after you have become disabled; otherwise, someone else will be making these decisions for you:

  • Where you will live
  • Who will take care of you
  • What activities you will partake in
  • Who will be your Guardian/Conservator
  • Who will be your children’s Guardian/Conservator

You probably have an opinion concerning one or more of those items now – but it won’t matter unless you plan for disability.

8. Failure to plan for wealth reception

As a result of failing to plan for wealth reception, many beneficiaries don’t know that they are receiving wealth, why they are receiving wealth in a particular form, and/or how to handle the sudden receipt of wealth.  According to Kendall, inheritances are blown, on average, within 18 months of receipt.  Planning for wealth reception may include options such as beneficiary training and education or deferred payments to beneficiaries.

9. Failure to plan for personal property

The failure to plan for personal property often leads to arguments and hurt feelings among the loved ones that a person leaves behind.  Either everyone expected to receive Great-Grandmother’s diamond engagement ring or no one can agree on which appraiser to call in to value your baseball card collection.  Almost all families have those items that, although they may be worthless in monetary terms, are sentimentally priceless.

10. Failure to maintain and update plan

Things change over time, including your assets, your family, and the law.  It is important to keep your estate plan up-to-date with the changes that take place in your life.  Open communication with your estate planning attorney about changes in your assets and family will lead to an estate plan that will continue to accomplish your goals.

In conclusion, there are many considerations involved in building an estate plan that fits your goals and circumstances.  At Cobin Law, we work with our clients to avoid making common estate planning mistakes in an effort to create plans that work.