Relax In Drafting Estate Documents – You Can Change Your Mind
One of the most persistent problems I see for clients and others in drafting estate documents is the anxiety associated with making choices. The dialogue goes something like this – “If both my husband and I die, should my mother and father serve as guardians or my husbands’ parents?” That is a tough question especially since two – actually three – families are involved. The anxiety involved in deciding could prevent any decision from being made.
Here are some other common examples. “My brother lives at a distance and my sister lives close by but my brother is better managing money. Our parents are deceased. Will either my brother or my sister feel insulted if we appoint the other as successor agent under power of attorney?”
Sometimes parents believe the oldest child should be appointed as successor executor when they die, thinking that the oldest child, regardless of his or her abilities or even willingness to serve would expect to be appointed.
The delay and stress associated with decision making can paralyze even the most organized among us. So, it should be a stress reliever first to know that these are dilemmas common to all of us and then also to know you can change your mind and change your documents as conditions change or even just as you reevaluate the circumstances.
Here are some considerations.
First, there are life cycle changes. When the children are young, you might wrestle with who should serve as guardian or trustee if you or you and your spouse die or are seriously injured. Your brother and his wife live at a distance. You think your inlaws might not raise your children your way. It is understandable you would be conflicted. You may need to make a decision anyway but it could change. A more concerning alternative is that a Court might wind up deciding for you in the case of tragedy and it might not be the decision you would have wanted.
In mid-life you now have the income and assets to consider. Your children may have jobs or be attending college. They may be living at home or have found a home of their own at a young age. Will they be responsible? When are they ready? If you treat one differently from another will that cause dissension? Does it matter?
If you are concerned about inheritance, should the children inherit outright or should there be a trust that pays out over time and, if so, who should serve as trustee? Will they listen to Aunt Allison? Sometimes appointing another family member to be in charge could seem awkward. Would you consider an institutional trustee or a bank trust department? Another alternative is to have both a family co-trustee and an institutional trustee. This would more likely occur where larger sums are involved.
If your child is disabled there are other considerations. She may need a support or a special needs trust and trusts require a trustee. For serious disability guardianship might be involved.
Life cycle changes can also involve changes in relationships. As time moves on you might have a falling out or estrangement with one or more of your children. This could be temporary or permanent and it can affect your estate plan.
As time moves on if you become sick, could your spouse handle everything? Where dementia becomes a problem the standard practice of naming your spouse as your executor or agent under a power of attorney might need to be reconsidered.
Choices can change. You can revoke powers of attorney or replace them with others. You can change your mind. There is no test to prove one way or another. This might mean the cure for indecision is actually to decide but remember the saving factor is you can always change your mind.
Often I see decision makers almost paralyzed by the possibility they could make a mistake. They may and probably will. We do and even where everything is done properly conditions change. This is why there is the possibility of rewrite.
The documents you prepare are intended to protect and cradle you through the difficult periods of your life. They are not intended to limit you. If you look at it this way, decision making with estate documents should make it easier, not more stressful.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.