Estate Planning Mistake #6: Not Planning for the Unexpected

This final installment in our series about do-it-yourself estate planning mistakes explores another common error we see among people who create their estate planning documents using forms downloaded from the internet.

Creating an estate plan isn’t just planning for the day you die or become incapacitated. It also involves thinking through the “what ifs.” As lawyers, we call those “what ifs” contingencies. 

Coming up with a list of contingencies is lot like a chess game where you must think three, five, ten, or even a hundred moves ahead. The general instructions that come with online estate planning forms aren’t very good at helping you do this.

Here are just a few examples of contingencies that might need to be addressed in your estate planning documents:

• What if you have underage beneficiaries? Is their property going to be held in trust until they reach an appropriate age, or will they have access to their inheritance immediately?

• What if your spouse is in a nursing home when you pass away? What if Medicaid is paying for your spouse’s care? How will you keep the inheritance you leave your spouse from disqualifying him or her from Medicaid?

• What if one of your beneficiaries is disabled? Are they going to be supported and protected if you die first? How will you do this without disqualifying them for any public benefits they are currently receiving?

• What happens if one of your children passes away before you? Would their children get their parent’s share of the inheritance? Or would their surviving siblings get everything?

• What if the recipient of a specific bequest is no longer living? Does the bequest go to that person's child or someone else, or does the gift lapse?

• What if you leave money to a child who has a lot of debt? Will your assets be available to their creditors?

• What if you leave your home to a child as their inheritance but then you need to sell the home during your lifetime? Are you going to compensate for that in your Will? 

Advance Directives and Wills have their own set of contingencies. If you execute an Advance Directive when you are single, and then you get married, the marriage revokes any agent other than your new spouse, which is a problem if you want someone else to be your healthcare agent. Any Will you made before marriage is partially revoked unless you made it in contemplation of a future marriage. This partial revocation allows your new spouse to receive what he or she would have received through intestacy laws had you died without a Will.

Can you see how complicated this can get? 

When I ask clients about these possibilities in our meetings, I often hear “Well, I never thought about that.” It’s no surprise. Nobody wants to think about these kinds of things, yet it is important to have every possible contingency covered in your estate planning documents because you never know what might happen. 

There are as many possible contingencies as there are people. Do-it-yourself forms you get on the internet won’t help you think through all the possibilities, but a good estate planning attorney will. This underscores the biggest estate planning mistake of all: not getting professional advice. You don’t know what you don’t know.

If you’re ready to put together an airtight estate plan that addresses every possible contingency, Kimbrough Law can help. Call our office at 706.850.6910 to schedule a confidential consultation.