by Michael B. Knisely
Many people offer reasons why they haven’t gone through a thoughtful process of estate planning. Some of these might sound like these:
If any of these rationalizations sound familiar, you are not alone. Studies suggest that somewhere around 50 percent of Americans have no estate plan. This article addresses some of the common roadblocks to estate planning and why and how those roadblocks should and can be overcome. By naming and identifying the nature of problems, sometimes we can have a better sense of how they can be avoided.
Roadblock Number One – The emotional aspects of estate planning / facing mortality
Planning for what is going to happen when you die or when you are no longer to make your own decisions requires purposeful thinking about concepts most of us are uncomfortable with. The emotional aspects of the estate planning process are real, but dispelling some misconceptions helps clarify that the true nature of the issues involved are not as morbid as we might think.
Sound estate plans do much more than just help us prepare for death: they address current issues, such as lifetime gifts, charitable giving, educational funding and minimizing the cost of the care for a disabled family member. Estate planning also provides a sense of peace and security for you and your loved ones – which is a benefit many people fail to consider.
Without an estate plan, all aspects of the administration of a person’s estate, from guardianship of that person’s children to distribution of that person’s assets, will be decided by default rules created by the Texas Legislature. That might be enough of an incentive in and of itself to plan: why allow inefficient and unnecessarily complex procedures to compound an emotional loss with a financial one? One approach to dealing with the anxiety-ridden and emotional aspects of estate planning is by taking it one step at a time. Begin by finding some basic literature about estate planning. Ask friends and colleagues how they have approached estate planning.
Talking and learning about estate planning casually, without the pressure of a deadline, can help relieve anxiety and establish a comfort level with the subject matter. When you feel more at ease about estate planning as a concept, schedule a meeting with a reputable estate planning attorney. Most experienced estate planning attorneys have seen pretty much everything under the sun, and are well-equipped to help you deal with the emotional aspects of getting a plan in place.
Roadblock Number Two – Procrastination
A common reason for putting off making important arrangements is the fear of making the wrong decision. People often delay completing their estate planning because (once they muster up the courage to address the difficult issues involved) they cannot agree on how to answer the big questions, such as who should serve as guardian for their children or be responsible for financial decisions in the event of incapacity. What some people may not understand is that, once executed, wills, powers of attorney, and other estate planning documents are easily changed without incurring substantially more legal fees. More importantly, the goal in estate planning is not perfection.
The goal is planning well for your future and that of your loved ones. If the fear of making a wrong decision is interfering with your planning, try doing an informal cost- benefit analysis. You will probably find the risk of being without a plan far outweighs the risk of having a less-than-perfect plan. Instead of putting off the whole process because of disagreement over one or two components, think about the benefits of completing the majority of your planning, knowing it can later be “tweaked.” In a very real sense, an estate plan that is not done at all is one hundred percent wrong.
Roadblock Number Three – Estate planning is (too) expensive.
Perhaps the most common excuse for failing to follow through with estate planning is based on a perception of the costs involved. What many people fail to recognize is that not having an estate plan in place often ends up being much more expensive down the road. For example, if someone fails to do any estate planning at all and then becomes incapacitated, family members might end up spending money on guardianship proceedings, heirship proceedings or other court proceedings, all of which could been avoided with basic estate planning documents.
Yes, it costs money to engage an attorney, but you can take steps to keep costs down when creating your estate plan. Find an attorney who is willing to provide an initial consultation without charging you sit down and give you a cost estimate after hearing your needs. An attorney can explain the confusing terms and applicable laws, and a good attorney can lay out what you really need (given your particular circumstances) and how to implement it in a cost-effective manner.
Although one approach to the concern about costs is “do-it-yourself” estate planning, often times a poorly planned estate plan can complicate matters more than it helps. Estate planning terminology and ever-changing laws are why attorneys go to law school and are required to attend continuing education courses. From beginning to end, you may spend more of your money on attorneys brought in after the fact to fix the problem when using a “do it yourself” document than you would had you hired a reputable attorney in the first place. And the peace of mind that comes with a professionally executed estate plan really is priceless
Roadblock Number Four – Lack of knowledge
Many folks just do not have a good understanding of what “estate planning” entails and what it is good for. Yes, it involves a will, but it also typically involves much more. Estate planning involves addressing issues of disability, values, family dynamics, charitable giving, and taxes. It is easy to become overwhelmed by all the different aspects of the process. To alleviate this roadblock, get educated and meet with a professional. A good estate planning attorney will walk his or her clients through the process step by step, only moving forward when there is both understanding and agreement.
The pitfalls of failing to plan usually are not visited upon the dead; it is the living who suffer the unexpected and unforgiving consequences. By failing to properly plan, many of us are creating problems for our loved ones that can easily be avoided. As Benjamin Franklin once said, "by failing to prepare, you are preparing to fail." If you’re unsure about where to start, find one of the (many) attorneys at Covenant and ask for a few minutes of their time.
Michael Knisely is a partner of Osborne, Helman, Knebel & Scott, LLP in Austin, Texas. His law practice primarily involves representing individuals and institutions in litigation, controversies and appeals arising from and involving trusts, estates, wills, probate matters and guardianships.