The biggest thing to avoid in this process would be to avoid drafting documents using website forms or ready-made documents where you just fill in the blanks, but people should also not make changes to their original document by writing things in the margins or crossing things out. They should also never work with an attorney they don’t feel good about, since estate planning is such a personal area, and people have to be willing to tell very personal stories about their families during the process, and they sometimes have to share painful details about children or relationships.
It’s an absolute necessity to trust the attorney they are working with, which means they need someone with whom they feel they can establish an ongoing working relationship with, and who listens to their questions and concerns. Do not work with someone who you feel is just what I would call the document clinic approach, which means everything’s about the paper.
Can Estate Plans be Modified in the Future?
All estate plans and documents can and will change over time, in part because people’s lives are constantly growing and changing. For example, a couple may create a will, and three years later they decided they want to choose a different guardian, because of an estrangement; we can prepare a codicil, which is a simple document that makes the changes necessary. Keep in mind, it’s not a good idea for the client to do it because it still requires the same legal format, with certain language, and it still needs to be witnessed and notarized, but an attorney can do it relatively quickly and easily.
You can also amend a trust the same way; for example, the name of the trustee or the beneficiary may change, if something happens or they die. We will always look at how many changes the client wants to make; if they are significant enough, it may be best to just start over. A trust is typically restated, meaning you keep the original date and name of the trust and completely redraft the will.
Another reason people have for redoing a will or trust comes when they want to remove an heir or beneficiary, which means we have to discuss with them whether not they want to add a codicil, which means someone will eventually be able to know they changed their mind and took that person out of the will, or if they want to redo a new will and have the old will destroyed. If add a codicil, the old will is still in the record and they will see what happened, and there may be hurt feelings.
What Difficult Decisions Does an Attorney See With in Estate Planning?
Probably the biggest decision some people make is whether or not to disinherit someone, such as a child who is doing drugs. On the one hand, you don’t want to leave them with money outright now, but what if they eventually pull their life together? It’s difficult to draft something that assures them that the money will be there if they ever fix things.
Another difficult dilemma, one that is critical and challenging at times, is helping clients realize that their children really don’t get along when they don’t. Helping people face reality in a very kind, caring way is very important, because the ultimate goal is for their estate to go as smoothly as possible. That’s our philosophy; we don’t root for family fights so we can make lots of money when they’re gone; we want their hard earned money and assets get into the hands of the people they intended to have them.
When we meet with people, we often start out by having frank conversations about very difficult issues, such as second marriage issues. A husband and wife have to realize that they have to be absolutely sure that if they leave all their money to someone who will make sure the children get it.
A very new area that’s difficult is that a joint representation letter has to be signed in Colorado, which means we have to tell the husband and wife that they may have a conflict of interest, and if they do, we can’t represent both of them. As our world becomes more troubled, these issues are becoming more and more prevalent, which is why a proper and well thought out estate plan is more important than ever.
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