One of my great joys in reviewing old estate planning documents is seeing the variety of cover sheets, folders, formats, and specialty paper that characterize decades-old wills and powers of attorney. We used to call it “lawyer arts and crafts.” The elaborate process of cutting Will Covers to size and binding everything together was as important as drafting the documents. I still remember running from my office in downtown Broadway to the Blumberg store on White Street as a young law clerk to find Will Continuation paper for a signing. Those were artifacts from a different era, monuments to a time before scanning, PDF’s and portals. What was written in those Wills and Powers of Attorney were also artifacts.
Many old wills have fundamental flaws. Wills are supposed to have an attached Affidavit of Attesting Witnesses. This affidavit is required to probate the Will. Without it, the witnesses to that old will would have be located and asked to sign an affidavit. Finding witnesses from 35 years ago is no picnic. We see plenty of old wills that lack the affidavit. This issue leads to costly delays. Old wills name executors and beneficiaries who are no longer alive. Often, there are no instructions regarding successor executors or contingent beneficiaries. For example, if no successor executor is named, an heir at law may petition the Court to be the Estate’s Administrator C.T.A. That person could be someone that you do not want in that role.
Antiquated Powers of Attorney are sometimes more problematic. Banks sometimes accept 20-year-old forms and clients think everything will work out fine. Pre-2008 New York State Powers of Attorney contained broad provisions for handling another individual’s finances with simple gifting instructions. The ability to set up trusts, make more complex gifts, change beneficiaries or account holders may not be allowed under an old Power of Attorney. Emergency Medicaid planning requires a variety of financial transfers to achieve eligibility. Without the requisite authorized powers an agent under a power of attorney may face real roadblocks to obtaining Medicaid for a loved one.
One goal of estate planning is to make life easier for your family. When children are young, a Will may name guardians and place an emphasis on setting up minor trusts should something happen to the parents. Once the children become adults, the parents’ priority may shift to helping them with life events like marriage, home purchase and grandchildren’s education. Revising a Will or setting up a new Trust would also incorporate important planning options such as Supplemental Needs Trusts for disabled beneficiaries.
Old wills and revocable trusts may not have anticipated long term health care needs. Medicaid planning with Irrevocable Trusts will still allow for assets to transfer outside of probate while protecting those assets from creditors. As the years fly by, aging adults are made aware of changes within their families. A once close family member may now be estranged. An adult child that used to live across the country has become your primary caregiver. Reviewing and refreshing estate planning documents takes into account family changes, changes to the law, practical changes in administering an estate as well as long term care considerations.
Old estate planning documents can be aesthetically pleasing, but woefully outdated. Contact the professionals at Sloan and Feller to review your estate plan and make it current.
