Estate Planning Checklist by OLDER LUNDY

January 14, 2018

Perhaps contemplating your death is not at the top of your 2019 “to do” list, but January is a great time to review your financial plan in the event of your death or other unexpected events.  Even if you have a will or some other estate-planning instrument, you should perform this three-step checkup to avoid some of the easier-to-prevent pitfalls.

  1. Find your “original” will and any trust.

Even in this digital age, the “original” of your current will is required to open a probate without otherwise unnecessary judicial review.  If you don’t have the original, at least make sure you know where to find the witnesses who attested to your signature.  Or – better yet – make a new will.

On the other hand, electronic access to financial account statements is the prevailing norm, so make sure that your will provides your personal representative with access to your digital accounts.  But be careful with the language of this authorization—if it is drafted too broadly, you may be giving your adult child access to things that are unnecessary to administer your estate, such as all of the emails in your personal account.  If this doesn’t sound alarming to you, go take a look back at some of the older emails still inhabiting your Inbox.  (Yikes, I just did that, and then deleted them).

  1. Read your will and trust in light of your current family and financial position.

A lot can change in just a few years.  For starters, make sure the personal representative named in your will is still the person whom you would want to make important decisions for your estate.  If your current will was drafted years ago and names your parents as your personal representative, but your children are now adults, think about who is more capable today of dealing with the stress of your probate.  Other decisions will be easier to make—for example, if your will was drafted while you were happily married, but you are now divorced, you may not want your former spouse to be in control of the money you leave to your minor children.  You can make changes to prevent such problems, but they do not happen automatically following a divorce.

Also, consider whether you want your spouse and children (or their potential creditors and perhaps spouses and future children) to have unfettered access to the assets you leave for them.  If not, consider drafting a trust to hold those assets.

  1. Reconsider how your homestead passes if you die.

The designation of a property as your “homestead” has many potential benefits under Florida law, but it can also create unexpected results after you die.  For example, most married couples have their homes titled jointly in their names.  But if you or your spouse (or both of you) have minor children from previous relationships, having your home titled jointly will exclude minor children of the first to die from ownership in the house.  There are similar pitfalls for blended families with adult children.  Navigating these issues requires forethought and often creative solutions.

Of course, there are many more subjects regarding post-mortem planning that all of us can consider.  Taking the three steps discussed above is an easy way to identify some often overlooked issues.  A little planning today may save your children a bitter fight in the future.

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