All of us avoid discussing or thinking about uncomfortable issues as we live our lives. Nowhere is this more evident than in the estate planning area. Estate planning is not merely about minimizing transfer (or income) taxes or deciding who receives which assets, it addresses such basic issues as who will raise my children, who do I want to make medical and financial decision for me when I cannot, including end of life decisions.
In our estate planning practice, we see the effects of failing to make these decisions, as well as failing to consider the ramification of the planning when advising clients (or making these decisions for ourselves). The most important aspects of decision making concern the selection of the individuals to whom we entrust the decision making and the ability of these individuals to carry out our intentions. These considerations include being candid with ourselves and our estate planners about our wishes and our beneficiaries’ and fiduciaries’ abilities to respect themselves and each other. Hoping that beneficiaries who had difficulties getting along with each other will change after the parents’ death will simply cause an estate plan to fail. Selecting the eldest child to be a fiduciary because of tradition may further resentment. Failing to explain why assets are being left to certain individuals or charities can lead to hurt feelings. Selecting a heavy handed fiduciary will only lead to the courtroom doors. Naming a health care fiduciary who disagrees with your wishes may cause wishes to be ignored.
Equally important, is to ensure that the carefully created documents are available and accessible when they are needed. With changing family arrangements, increase longevity, more mobile frames and fewer marriages, it is important that your plans be known to those who have been selected to carry them out. Nevada, for example, has a registry where health care directives can be filed, an additional safety net for placing documents where they can be readily found.
The most successful estate plans are based on communication and confidence. Communication with our loved ones about our wishes and concerns and confidence in the ability of those we have selected to carry them out.