Estate Plan Updating

f you fail to update your estate plan, your assets may be given to the wrong people. Updating is something that many people forget to do. Making updates can often be an easy process, with the help of an attorney. If you want to control your assets, take a look at the following information. If you have any questions, or if you’d like to review and update your estate plan, contact an estate planning attorney.

If you have an estranged family member, you may have a lot of stress and anxieties about the future. It can be difficult thinking about whether another family disagreement will occur. If you wish to have no contact with a family member, you likely also want to make sure that your assets aren’t going to be distributed to him or her.

Take a look at this example:

Susan, 39, created her estate plan early in life. She wanted to make sure that her family was always protected. When handling her estate planning affairs, she decided to designate her younger sister, Alicia, as the beneficiary of her life insurance policy. Several years later, Alicia began abusing alcohol. She not only became a raging alcoholic, but she also began to steal Susan’s belongings. Susan was forced to cut her sister out of her life completely. Unfortunately, she forgot to update her beneficiary designations. When Susan suddenly died a few years later, Alicia received her life insurance assets as well as a large portion of her estate.

If you’re not careful, this can happen to you! You need to make sure that all aspects of your planning are reviewed and updated on a regular basis. This will ensure that your wishes are always respected.

• Check beneficiary designations.
• Meet with an attorney to review your plan every 3 to 5 years.
• If you experienced significant life changes, take the time to make updates!
• Don’t put your planning aside for good, once it’s completed; update.

By taking a little extra care, you can ensure that your assets are given to the right people. If you have any questions, or if you’d like to update your estate plan, consult with a qualified estate planning attorney.

As long as you have testamentary capacity (i.e. you’re mentally competent), you can make changes to your will. You can change it a little, change it a lot, or completely revoke it, any time you want.

However, it is imperative that you work with a qualified estate planning attorney so that your changes are legally valid and well understood by your executor, the courts, and your beneficiaries.

In the “olden days” (i.e. pre-computers), small changes would be made via a “codicil.” A codicil is a small change, an amendment. Wills used to be a zillion pages long and hand written or type written. To avoid re-writing or re-typing the entire will, a codicil was drafted.

Multiple codicils could be confusing or even misplaced and, thus, were ineffective.

Now, in the computer age, codicils are rarely used. The entire will is redrafted on the computer, easily reprinted, and re-executed.

Both a codicil and a new will must be legally executed in order to be legally valid. If your will is not executed legally, it has no value and is as if you have not made any change.

Typically, your will must be signed by you at the end of the document, witnessed by two adult witnesses, and notarized.

To best ensure that your will works, meaning that it does what you want it to do:

• Never make any handwritten comments on the documents.
• Make updates every three to five years or sooner if your spouse dies, you get married or divorced, your executor becomes disabled or dies, you move to a new state, or you have a new child in your life.
• Always work with a qualified estate planning attorney; there is a class action lawsuit in California now pending wherein a will downloaded from LegalZoom wasn’t properly executed; and, therefore, it wasn’t legally valid.

If you’d like to make changes to your will, you have the power to do so. Consult with a qualified estate planning attorney to best ensure that your changes are effective.

Some estate planning documents are effective as soon as you sign them; others not until you’re incapacitated or die. You and your trusted helpers (i.e. executor, power of attorney agents, guardians for minor children, and trustees) need to understand when your estate planning documents are effective. After all, your trusted helpers only have the legal authority to act on your behalf when the documents are in effect.

• Your Will

Your will is only effective if you’re dead; it has no authority and doesn’t get filed anywhere until then. Your executor files your will with the probate court and is then granted authority to act. It is then that the guardians for your minor children have the authority to make legal, medical, general welfare, and lifestyle decisions for your children.

• Your Revocable Living Trust

Your revocable living trust is effective as soon as you sign it; however, your successor trustees don’t have authority to act on your behalf until the trust document says that they do. For example, trusts typically have provisions for disability (i.e. incapacity.) When that definition is met, your disability trustees have the authority to act on your behalf and manage trust assets.

The trust is not filed with the court and there is no need for the court to grant authority to the successor trustees (unless your trust provides for such.) Death (i.e. settlement) trustees have the authority to act upon your death.

You may name a spouse or an adult child as an initial trustee, along with, or instead of, yourself. Any person named as an initial trustee has authority to act as soon as the trust is signed.

• Your Health Care Proxy

A health care proxy is effective if you cannot give informed consent to accept or refuse medical treatment.

• Your Power of Attorney

A power of attorney is sometimes effective immediately; other times, it’s effective only when you are incapacitated.

• Your Living Will

Your living will is effective if your doctors examine you and determine that you are in an irreversible coma or persistent vegetative state.

If you need additional assistance understanding when your estate planning documents are effective or think your documents are different than described above, consult with a qualified estate planning attorney.