Q: Estate planning is seldom a one-time event. It’s often an ongoing process that changes as families grow and situations change. But what sort of circumstances require the expertise of a legal professional, and are those do-it-yourself legal kits enough to get the job done?
A: For answers to these and other questions related to estate planning, we reached out to Michael Biesheuvel of Puget Sound Wills & Trusts. He has practiced estate planning and administration for more than 10 years and lives in Lynden, Whatcom County.
Q: What sort of legal documents should readers know about as they reach middle age and older?
A: As your life changes, so too must your estate plan. For example, maybe your children were minors when you created a will many years ago, but now they are adults and you would like to nominate them for roles like personal representative (executor). Maybe someone you nominated has predeceased you and needs replacing. Or perhaps your assets have increased in value and you now need to think about Washington state estate taxes. Estate plans require occasional revisiting.
Q: What are some of the misconceptions some clients may have about estate planning?
A: Estate planning is not only for the wealthy. Everyone needs some level of estate planning, like a health care power of attorney. I have even done pro bono work with clients who were exiting homelessness. Just because Washington is a community property state does not mean that your entire estate automatically passes to your surviving spouse. It is more complicated than that.
Q: For someone with very simple requirements, are the do-it-yourself legal kits adequate?
A: Possibly. But the do-it-yourself approach requires one to accept the risk that they may have missed something critically important. I like a good deal as much as anyone, but I don’t think estate planning is a wise place to cut corners when the stakes are so high.
Q: What sort of situations require a professional?
A: It really is best if everyone works with an experienced attorney. Our world is increasingly complex. Even seemingly simple estates can involve hard-to-spot issues that an experienced attorney can identify and address. Clients often say things like “I never even considered that!” Unfortunately, I’ve seen folks make some very expensive mistakes just to avoid attorney fees. In the rare instances when an attorney’s services are not needed, a good estate planning attorney will alert the client.
Q: Have you seen clients who used do-it-yourself forms get tangled up in red tape?
A: I’m afraid so. Do-it-yourself documents frequently contain serious problems. In fact, I commonly see such documents invalidated altogether for failing to comply with the formalities of execution here in Washington.
Q: What tips can you give to someone just starting their estate plan?
A: When searching for an estate planning attorney, look for someone whose primary practice area is estate planning, and who is completely transparent and forthcoming about the costs.
Q: What documents should clients gather before starting their estate plan?
A: If you have any existing estate planning documents, prenuptial or postnuptial agreements, or other documents you think your attorney might need, bring those to your consultation. You should also be prepared to provide a general summary of your assets. Begin thinking about who you would want to nominate to make medical decisions for you, manage your finances, or administer your estate. For all of these roles you should designate at least one backup nominee.
Glossary of legal terms
Living will/advance health care directive. A living will is a legal document that permits a person to specify what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. These documents give instructions about when to use life-saving measures and life-sustaining measures, which are not the same thing. One reason living wills came about is because advances in medical technology can sometimes make end-of-life care prolonged, painful, expensive and emotionally burdensome on patients and their families.
Power of attorney. A power of attorney is a legal document that allows another party to act on your behalf. This can be helpful to older people and others who want to choose a trusted person to act on their behalf when they cannot. In Washington state, a power of attorney must be signed and dated by the principal, and the signature must be either acknowledged before a notary public or two or more qualified witnesses who are unrelated to the principal.
Probate. A process by which King County Superior Court appoints a person to sell or transfer a deceased person’s belongings, pay all of the bills, manage tax issues, distribute the remaining assets according to the person’s will, and then properly close the probate. If there is no will, the person appointed distributes the assets according to Washington’s default law on distribution to heirs. The probate process creates a public record of a person’s estate.
Trust. A trust is a relationship in which one party (you) elects a second party to hold assets for the benefit of a third party, at some future date or dates. The trust becomes legally binding at the time of your death, or if you become incapacitated. If the beneficiaries are currently incapable of handling your property, the trustee will manage it until they are ready. Your trust also keeps your assets more private by keeping them out of the probate process.
Special needs trust. The special needs trust, one of the most common trusts, is a legal arrangement to ensure assets are held in trust for another party who has special needs (such as a physical or mental disability, or a chronic illness) without reducing that party’s eligibility for public assistance programs.
Sources: AARP, Washington State Bar Association, Washington State Courts.