My high school wrestling room displayed a banner that read, “Proper Practice Prevents Poor Performance.” The message is simple—if you put in enough thought and effort at the beginning, the end result will be better. This message holds true with regard to my practice of estate planning and estate administration—“Probate.” Proper Planning Prevents Poor Probate!
Avoiding Poor Probate
What is poor probate? Probate is the court administered process whereby your assets are gathered; your debts, expenses, and taxes are paid; and your assets are distributed to your beneficiaries. If difficulties arise with any of these items, your beneficiaries will likely describe their probate experience as poor.
Proper Probate Planning
What does proper planning include? Proper planning includes knowing your assets, knowing how your assets are titled, and whether or not the assets include a designated beneficiary (see Preparing for Your Estate Plan.) It also includes nominating an executor, trustee, and guardian that are not only legally qualified to serve, but also capable of serving well (see Executors, Trustees and Guardians, Oh my.) In addition, proper planning includes communicating with your attorney, your named agents and other appointed persons, and your family.
First, communicate openly and honestly with your attorney. For example, if you have a child that is unable to handle financial matters or is disabled, you should let your attorney know this early on in the process. Without this information, you may end up with a plan that provides for outright distributions when a trust was either necessary or preferred. By openly communicating with your attorney, your attorney can help you construct an estate plan that is appropriate for you and your beneficiaries.
Next, communicate with your named agents and other appointed persons. These would include the person that you have nominated to serve as your financial power of attorney, health care power of attorney, executor, and, if needed within your estate plan, your trustee and guardian. At a minimum, you should let these people know that you have executed your estate planning documents and where you keep them. Also, consider providing a list of your assets to your financial power of attorney and executor. Further, if you have any special instructions for any of them, you should let them know. Communicating with these persons will help ensure that your intentions are followed.
Finally, communicate with your family and other beneficiaries. Make sure that your family understands your wishes and goals. Use these communications to help manage the expectations of your beneficiaries. Explain to them why you have chosen the persons that you have to be your agents and other appointed persons. If your will provides for unequal distributions, explain why you have chosen to distribute your assets in this fashion. Communicating with your family members will decrease the likelihood of a challenge to your estate plan.
Proper planning can prevent poor probate. Keeping your assets organized and having the appropriate persons nominated within your plan is important. However, your plan isn’t complete until it has been communicated with those persons involved in the administration of your estate. By communicating with these persons during the estate planning stages, your plan is more likely to be administered with ease.