I frequently harp on the point that core estate planning is realistically a dull subject. Most of us do not wake up each day with estate planning in mind. We, therefore, understandably keep this item at low-priority on our persistently jam-packed To Do Lists.
Nonetheless, the bulk of costly disputes and litigation I see in my law practice stems predominantly from the absence of estate planning or poor quality planning. My view is that 95% of these costly problems can be avoided with well-drafted core estate planning documents. And, keep in mind that if you do end up with litigation, you will be forced to think about your estate planning problem for days on end. Too frequently.
Here is a checklist helpful for moving your core estate planning up higher on your To Do List. These points refer to Georgia, but the questions are generally universal:
- Does my (that is, you) planning cover old-age or health-related incapacity?
- Who am I (you) naming to step into my shoes in the event of my incapacity or death (this deals with the named executor(s) under your Will; your trustee(s) for trusts; your agent(s) acting under your financial and health care directive).
- Do my [that is, your] documents provide any asset protection while I (and my spouse) am alive?
- Do the documents provide asset protection for our children after both our deaths (as parents)?
- After both our deaths (as parents), do our documents protect against divorce for our children?
- Do my documents include sufficient built-in flexibility to address future changes in the law (particularly the tax law) and in my family situation?
- Are there options in my documents for optimal income tax planning, especially for the compressed tax rates applicable to estates and trusts and for maximizing the stepped-up cost basis at death?
- Do my documents include sufficient flexibility for addressing state death taxes? For example, Georgia presently has no death tax, but there is no guarantee Georgia will remain death-tax free.
- How, if at all, are we addressing any possible benefit for our children’s spouses?
- What about guardians for our minor children?
- What if we move from Georgia?