How We Are Different - Life & Estate Planning

Estate planning topics can sometimes be difficult to discuss - planning for what happens in your and your family's lifetime, and at your death. But at some level, we all realize the latter is something that will happen - it's part of life. In my experience, thinking of what you want to provide for family members when you're gone can add some depth to life now, because it helps you appreciate relationships you have; and also what is and perhaps is not important to you.

My approach to life and estate planning now is influenced by some experiences I've had in my own family.

I remember when my Mother was going through breast cancer from which she ultimately passed away, and there came a time to sign consents to treatment, and a sibling stepped up to sign the forms as an alternate signer for my mom. I thought it made sense to sign also or include my name on the list, and recall my sibling mentioning that's not what's called for in the legal papers. I recall, even though I'm an attorney, not understanding at the time what that all meant, nor the difficulty at times later getting information from a doctor regarding my Mother's illness and treatment. Not one person's fault, it usually takes at least two, but not knowing sometimes was difficult, and there ended up being a not insignificant amount of conflict between myself and my sibling that we eventually worked out, but it was not at all easy at first for either of us. I think it's often not just the particular immediate issue, but rather family conflict from the past that family members have never needed to resolve, that surfaces again under the stress of a loved one's illness and hospitalization.

Another source of conflict we faced after my Mother died, and at a point where my Father had already developed an advanced neurological condition which made it not possible for him to deal with this, was an issue regarding financial support for one family member, and how to deal with assets from my Father's trust for this family member. We eventually worked this out also, but it was upsetting for all involved for some time.

One of the things we'll do as part of your estate plan is request that you meet with your adult children and other family members or significant people involved, to explain the plans you're making, to be sure everyone understands the plans and what is important for you; to try to help avoid conflicts for your family later on. Another significant area of my practice is Collaborative Family Law, and if you think it would help you, we can have that family meeting facilitated in our office, or by one of the Collaborative Law facilitators with whom I work.

My siblings and I had some conflict to work out which we did, but it was actually fairly upsetting for a while. It is possible that some of that for us could have been avoided, if we had all sat down with my parents at the outset, while they were still able to explain their plans.

Regarding the financial issues with one family member, my parents' Estate Planning documents were prepared by an excellent attorney working for a prestigious firm - the papers were excellent. However, by the time the financial issues began to surface, my Father wasn't able to address them because of his neurological condition. These issue also possibly could have been avoided if my parents had been advised to sit down with the family, explain the plans they had put in place, and what their expectations and wishes were. This wasn't the result of some error by the estate planning attorney in somehow deviating from or failing to live up to a standard of practice. Generally, estate planning is preparation of documents for people to sign, but I believe here, something more is better.

I learned also first-hand some of the more mundane difficulties that can arise after a family member dies, but which are no less upsetting, because you're dealing with them in the immediate weeks after a loved-one dies. My parents earlier had been in a very serious car accident which left my mother with spinal-cord damage. They received a large settlement which was placed in trust and primarily invested in CDs. After my Mother passed away and when some CDs in the name of my Father's trust were about to mature, after talking with the family we decided to invest the funds with another bank . As part of this, the funds were to be transferred to the checking account for my Father's trust at the bank he used.

This was the bank account to which funds from the CDs routinely had been transferred in the past, not a new, unknown account, but the bank required that the decision to transfer the money be confirmed by my Father on the telephone; or the bank representative could authenticate my dad's identity by asking him a series of question over the phone, and if the answers matched and they confirmed his identity, my father could confirm that he wanted the bank to talk with me to receive further instructions.

The problem was that at this point the neurological condition my Father has had progressed so far that he wasn't able to answer the questions to the bank's satisfaction. What followed were calls with one representative, and then another for a higher level authentication, with recordings of the calls being forwarded up the line to different people in the bank's fraud department, with supervisors listening to the calls to decide if my Father had adequately answered the questions to authenticate his identity. In addition to this process being difficult and I believe unpleasant for my Father, the bank's initial response was that the authentication was not sufficient. After a few days and a letter from myself and another family member (both of us attorneys), the bank released the funds so that they could be reinvested.

It is of course important for a bank to take precautions to prevent fraud, and a bank could potentially be at fault themselves if they failed to do that, but unfortunately, although I was my Father's Power of Attorney, that is not sufficient, and most financial institutions in Florida will not accept that as sufficient under Florida law to grant authority to take actions regarding trust assets. After this, the family made a decision to appoint me as Co-Trustee for my Father's trust, and we were able to have that completed with the assistance of my Father's estate planning attorney.

The importance of all of this is that it is important to talk about the potential, real world consequences of the information in the large stack of complicated Estate Planning documents, to decide what will work best for you and your family.

As a final lesson from my Mother's death, I have many pictures of her, especially from the last few years of her life, and a few videos, but wish I had more. One thing we include as part of the Life and Estate Planning process, is preparation of a video either here at the office, or yourself at home if your prefer, not of the financial plans, although as I've explained getting those right and explaining them to the family in advance is important, but rather a video of your passing on information you want your children or other family members to hear - life lessons and thoughts, perhaps you've never mentioned before. You can think of this as passing on not only your financial, property assets, but other equally or more valuable assets. A lot of times children, even adult children, don't know a lot about their parents outside of the parents' roles as Mother and Father. My Father is still alive, but at this point it wouldn't be possible for him to make a video like this for us.

For me, I'm single, and even as a single person as you develop your plan, it's something to think about how you want things to be handled after your death - even something as simple as how will your funeral be handled; and where you want assets to go. Life and Estate Planning can perform important functions for you during your life, for example protecting assets or providing for what happens if you become ill, but ultimately estate planning will be about how it will be for your family members after your passing.