It is rewarding to see my clients leave the office with a noticeable sense of relief after executing their estate plan. They have “checked the box” on an important task, comforted in knowing their intentions are in writing. While the obvious remaining task is ensuring safe-keeping of your documents, it is important to understand and follow through with any further directions from your attorney. Equally important, is understanding what NOT to do after executing your documents.
Keep in mind some of these more important document “do’s and don’ts”:
DO keep your documents in a safe place: Your original documents should be protected from damage, theft, and nosey neighbors. A locked file cabinet in your home is likely sufficient, or your attorney may be willing to keep the originals. In the case of a Last Will and Testament, you may choose to have your nominated executor hold the original so there is no delay accessing the document at your death. This may hold true for your Health Care Proxy/Advance Directive as well, since your agent has no authority until a medical professional activates it. I would not typically advise having an agent with immediate authority (such as with Durable Power of Attorney document) hold the original, unless you want or anticipate a need for your agent acting on your behalf immediately.
DON’T hide them too well: Many people leave the attorney’s office and the next stop is the safe deposit box. While this may ultimately be the right choice for you, think through the access problems that may arise. For instance, is your nominated executor a joint owner with a key to the box? What are your bank’s rules regarding access by fiduciaries?
In your efforts to secure your documents, do not make it impossible to locate them. If you are hiding them in a secret compartment under the closet floorboards, tell someone. Likewise, if your attorney is holding your documents, tell your executor, health care agents, power of attorney, etc., so they can contact your attorney if/when necessary.
DON’T try to edit your own documents: There are procedural requirements for each legal document…for instance, some documents must be notarized, witnessed, etc. These requirements extend to amendments as well. Therefore, you should never make changes to your executed documents without complying with all requirements or consulting with an attorney.
But DO use a personal property memorandum referenced in your Last Will and Testament. I usually include and reference a personal property memorandum in a client’s Will. It pertains to personal property only (essentially all of your “stuff”—jewelry, furniture, clothing, knick-knacks, etc.) It does not include any financial assets or bank accounts.
Most of us have so much “stuff” that it would be burdensome to assign each item to a specific beneficiary in the Will document itself. You also acquire and discard more “stuff” after the Will is executed. For this reason, these less significant assets are often dealt with outside of the Will, in the Personal Property Memorandum. Some clients never create a list, but your executor will consider it a helpful guideline when dividing up the personal property not addressed specifically in the Will. This list is not legally binding, and therefore you can change it without the formal procedural requirements. However, you cannot use it to make changes to any specific bequest in the executed Will. For instance, if the Will included language “I leave my pearl necklace to my daughter”, and you later indicate on your Personal Property Memorandum that you want your son to receive your pearl necklace, your daughter would remain entitled to the necklace. An official amendment to the Will, following procedural requirements, would be necessary to change the beneficiary of the necklace. The Personal Property Memorandum cannot include any financial assets.
DON’T delay making recommended transfers/retitling assets: If you executed a trust with the intention of protecting assets or minimizing taxes, you need to be mindful of timelines and titling instructions. If the trust was created to hold real estate, was a new deed recorded transferring the property? If the trust purpose was to start a five-year clock running (for Medicaid planning), have the assets been retitled/transferred into the trust properly and timely?
DO consult with your attorney and/or review your documents after any major life event that could affect your planning: Such events include, but are not limited to marriage, divorce, adoption, death of spouse, moving out of state, nursing home admission, and terminal illness.
DO have a conversation with your health care agent: Since you appointed this person to make medical decisions on your behalf when you are unable to do so, he/she should know your wishes with respect to treatment, end of life decisions, etc. Your documents will likely include broad authority, but it is helpful to discuss any specific details/wishes/beliefs with your agent while you are well.
If you are in frail health, and have strong opinions regarding specific treatment, you should share this information with your health care providers as well, and perhaps keep the name of your health care agent in your wallet or visible in home.
And finally, DO give yourself credit for initiating the estate planning process—which is often the hardest part!
The attorneys at Senior Solutions are caring elder law and estate planning attorneys with offices in Belmont and Hingham, Massachusetts. We serve the Greater Boston and South Shore of Massachusetts. Providing Medicaid Planning, Wills, Trusts, Powers of Attorney, Health Care Proxies, Special Needs Trust Planning, Guardianship & Conservatorship and Probate.