A long time ago when I was in law school, my roommate Jerry and I drove to Florida towing his boat. On our return trip, just south of Atlanta, the car broke down. As we slowly rolled off the highway, a car stopped and the driver, a middle-aged man, told us to hop in. Relieved that rescue appeared so quickly, we jumped into the car and the driver pulled back onto I-75 North.
As soon as the car reached highway speed, the driver turned to us and said “boys, how are you fixed to go to heaven?” Jerry and I gasped in unison fearing trouble. Jerry, instantly replied “Mister, all I want to do is go to a gas station.” It turns out that the kind stranger was a preacher at Bob Jones College and was merely inquiring into our spiritual plans.
The pandemic which is upon us, has caused all of us non-teenage mask wearers to reflect upon our mortality. We live with the mentality of immortality until something like this pandemic shocks us into reality -- fear being the great motivating factor. As we take stock of our lives, which the quarantine has provided us the ample opportunity to do, we must think beyond stockpiling toilet paper and sanitizers. While we can think about the spiritual, we are well-served by stopping at the metaphysical, and how our inevitable passing will affect our families.
My father, a long time estate planning lawyer, used to say that those who think probate is bad don't understand probate. Probate is the administration of the probate laws of the state in which you live. The probate laws are designed to protect you, your heirs, your beneficiaries and your creditors. In effect, the Legislature has created a default estate plan for you. The estate plan that the Legislature has for you is not likely the one that you would choose for yourself. Their plan provides great safeguards but fails to take into account your personal wishes and the needs of your family. We are fortunate in Hamilton County to have an excellent Probate Court headed by Judge Ralph Winkler who is assisted by extremely competent magistrates and staff. The Probate Court’s intentions and actions are all good, however, they are limited by the law and even more limited if you fail to provide clear directions.
I have found the same holds true around the state and around the country. The opportunity for court intervention and the ensuing angst is created by improper or incomplete planning. Those who have been through Probate where the incompetent or decedent has failed to properly plan, will regale you with horror stories. The worst part of probate is the family discord and fractured relationships coming from the lack of good planning.
The best way to avoid fighting is to make certain that your wishes are fully considered and stated clearly. Estate planning is most often more than a simple Will. It should include Powers of Attorney, both financial and healthcare, Living Wills, Trusts, burial instructions and guardianship nominations to name a few. As a worst case scenario if you do not have a Living Will, the Probate Court, if brought into the fray as a result of a disagreement in your family, will have to decide whether you are kept alive on machines or allowed to die naturally. Would you want to remain living?
At this point, your voice cannot be heard. Often, if there is no expression by you, the court and medical community will opt to keep you on life support. I have seen what this can do to a family emotionally and financially. It is something to be avoided.
It has been my experience in over 47 years of estate planning and probate practice that family is very much like Champagne in a bottle under pressure. Once the matriarch or patriarch is no longer around to exert pressure, like the cork in the bottle, all of the real or perceived slights that have been kept in suspension will come bubbling out.
As Tommy Smothers one of the Smothers Brothers used to say, “Mother always liked you best.” This often will manifest itself in conflict and ugly conduct which you can easily avoid with advance thought and putting into place a clear plan.
You can get a Will off the Internet or from a trust mill, but let me assure you, one size does not fit all and this is likely to be a mistake. I have seen such “estate plans” being worse than none at all. I am in the middle of one now where clearly the trust mill inadvertently failed to properly provide for a loved grandchild.
It’s best to avail yourself of the experience garnered by an estate planning lawyer, to anticipate and deal with issues that you may not have considered but they have experienced. Do you have heirs with special needs? Do you want your children to leave your assets to your in-laws? I often ask my clients the question “do you know the difference between in-laws and out-laws?” The answer “outlaws are wanted” inevitably causes laughter -- often to the chagrin of the spouse.
What about taxes? Have you considered that the new Secure Act has made your planning for qualified funds much more difficult: Cullen Hightower, a political humorist, said “we may not be able to imagine how our lives could become more complicated or more frustrating but Congress can.” Congress has done a great job of complicating our lives with the Secure Act.
These are just a few examples of what effective and complete estate planning takes into account. Your failure to act won’t be your problem as you will not be around to see the carnage. With proper planning, “the good will not be interred with your bones.” I have received much gratitude from family and beneficiaries for helping their loved ones through their loss with effective planning. Your family will thank you posthumously.
Are you headed for the nearest gas station or are you finally thinking beyond. Now is a great time to act. So I ask you, “How are you fixed go to heaven?” Heaven can wait, but can you?