Springtime is here again, and this year it feels different. In spring 2020, plants were bursting with life as we humans hunkered down in effort to preserve our own in the face of a global pandemic. Travel plans, weddings, and birthday parties were cancelled or postponed, and life went on hold. One year later, we are weary and crave a return to some sort of normalcy. We see hope in the downward trends of COVID infections and increasing rates of vaccination. The world is beginning to slowly open and you can feel the cautious optimism in the air.
Sitting at my favorite café I hear whispers of plans. Dreams of summer vacations and bucket list items checked off are being discussed, flights are being booked, and hotel reservations made. It seems no one wants to procrastinate any longer on (cautiously) booking travel. Given the dramatic shifts in life as we know it over the past year, I wonder if they have forgotten something in their planning. What I am talking about is not the kind of planning we find immediately gratifying, like booking those plane tickets, and perhaps many would not think to add it to their travel planning checklist. The oft-overlooked detail I am referring to is estate planning. It could be as simple as putting a basic will in place before your departure. It is a consideration equally as important as your other trip details, and one you will be grateful you did not procrastinate on should the unthinkable happen while you are away.
Procrastination is a very common behavior when it comes to estate planning. Having been an estate planning attorney for nearly 30 years, I do not believe I have ever met a client who was excited about planning for the possibility of incapacity and their ultimate demise.
In most instances, there is a triggering event in a client’s life which causes them to schedule the initial appointment to start the estate planning process. The most typical triggering events are recent death of a friend or family member, diagnosis with a serious illness, a realization they are not going to live forever, or a spouse or other family member who drags them to the initial meeting with the attorney.
Ask any estate planning or estate administration attorney and they will likely be able to provide countless examples and stories to support the importance of estate planning.
There are some common misperceptions that estate planning is only for the wealthy or that it is not important until you become “old.” Estate plans may range from very basic to extremely complex, but every adult should have some plan in place to address the possibility of incapacity and their eventual death. We all hope to never become incapacitated and we probably all hope to live a very long life. Fortunately or unfortunately, we simply do not know what tomorrow will bring.
Below are three reasons to dispel the misperceptions mentioned above:
- If you have minor children, it is extremely important to have a last will and testament which appoints a guardian in the event of your death and the death of the other parent. Without a last will and testament which makes this appointment, a very contentious situation may arise where different family members are fighting to be appointed as guardian. The court could possibly appoint someone whom you would not have appointed yourself.
- If you die without a last will and testament and/or trust in place, the New Mexico Probate Code will dictate the manner in which your probate assets are to be distributed. Similar to the situation addressed above, the allocation of assets among your heirs may not be consistent with what you would have otherwise intended.
- Should you become incapacitated for whatever reason (i.e. an accident, a stroke, dementia, or other illness) and be unable to make health care or financial decisions, someone will need the authority to make these decisions on your behalf. This authority can come from properly drafted health care and financial powers of attorney. In this situation, the person(s) you have designated as your agent will be able to make decisions on your behalf without any court involvement. On the other hand, if you do not have powers of attorney in place, then there may be the necessity to have a guardian and/or conservator appointed for you. This appointment is made by a court, and the proceedings can be very expensive and are frequently contested by other family members.
Retaining an estate planning attorney to assist with the development of your estate plan is extremely important. There is no question that retaining an attorney will come with a cost, but I genuinely believe most clients feel a significant sense of relief when their estate plan is complete knowing their affairs are in order. Nearly everyone I know has limited resources, and the prioritization of expenses is a constant issue to be addressed. It is not uncommon for people to rank the expense of retaining an estate planning attorney lower on their list of priorities. However, knowing the problems and unintended results that can occur without an estate plan in place should cause each one of us to rethink those priorities to ensure, at minimum, your end-of-life wishes are documented and can be carried out.