Last Will

January 6, 2012

New York Guardianship and Estate Settlement Often Cross-Paths

New York Guardianship proceedings for incapacitated persons are governed by Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed in numerous posts the powers and duties of a Court appointed Guardian.

In many instances, a petition for Guardianship is filed with the Court because the Alleged Incapacitated Person (“AIP”) appears to be the victim of physical or economic abuse. The Guardianship proceeding will require the appointment of a Court Evaluator and/or Attorney for the AIP. These appointees and the Court itself will review whether any wrongdoing is being perpetrated. Sometimes, a government agency called the New York State Mental Hygiene Legal Service is appointed to protect the AIP’s interests. MHL Section 81.29 entitled “Effect of the appointment on the incapacitated person” provides the Court broad powers to remedy situations where the AIP has been taken advantage of. For example, the Court can void a contract or a power of attorney entered into by the AIP if the Court finds that the AIP lacked capacity when such papers were signed.

Even though the statute gives the Guardianship Court broad powers to remedy wrongdoing, MHL Section 81.29(d) specifically provides that the Court cannot “invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.” Thus, if the AIP signs a Last Will at the time he or she is found to be incapacitated while still alive, any objection or Will Contest to the validity of the Will must wait until the AIP is deceased and the Will is offered for probate.

In this regard, it is interesting to note that a finding of incapacity in a Guardianship proceeding does not mean that a person lacked the testamentary capacity to execute a Last Will. MHL Section 81.29(b) specifically provides that “subject to subdivision (a), the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will”.

Since a Last Will cannot be challenged until a person dies, many issues involving the disposition of the AIP’s estate are fought over only after the AIP dies. Estate settlement and estate administration becomes the new battle ground for problems that could not be settled in the Guardianship.

The Courts clearly recognize that while the overlap of controversies may exist, the paradox of a finding of incapacity for Guardianship cannot forestall an incapacitated person’s ability to sign his or her Will.

This circumstance was clearly shown in a recent case entitled Matter of Biaggi, decided by Justice Alexander W. Hunter, Supreme Court, Bronx County, on November 10, 2011 and reported in the New York Law Journal on November 28, 2011. In Biaggi, objections were filed to the action of the Guardian for retaining an attorney to assist the incapacitated person with drafting and executing a new Last Will. The Court found that the Guardian acted appropriately and noted that “allegations of testamentary capacity and undue influence are matters that should be more appropriately be brought up, if necessary, post-mortem and not at this time before this Court.”

December 28, 2011

New York Wills Probated After Validity is Established

by Jules M. Haas

Probate of Wills in New York requires the compliance with many provisions that are part of the New York Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”).

First and foremost, EPTL Section 3-2.1 entitled “Execution and attestation of wills; formal requirements “sets forth the statutory mandates that must be followed for a Will to be validly signed. The statute sets out a number of requirements such as: (i) the Will must be signed at the end by the testator (3-2.1(a)(1); (ii) there needs to be “at least two attesting witnesses” (3-2.1(a)(c)(4) ); and (iii) the signature of the testator must be made in the presence of or acknowledged to the witnesses (3-2.1(a)(c)(2).

The formal requirements of the statute are quite extensive and variations or questions that may occur regarding compliance with these formalities often result in controversy and litigation. For example, what happens if all the steps are taken to prepare and execute a Last Will but the original of the Will cannot be located after the testator’s death. SCPA 1407 entitled “Proof of lost or destroyed will”, provides the process by which a Will can be admitted to probate under such circumstances.

In order for the probate process to be completed, the Court requires that the Attesting Witnesses provide testimony confirming that the signing of the Last Will complied with the formalities of law. This testimony can be live or, as is most often done, by sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. SCPA 1406 entitled “Proof of will by affidavit of attesting witness out of court”, allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a “self-proving” affidavit.

It is a common misconception that preparing and signing a Last Will is a relatively simple matter. As appears from the brief discussion herein and other posts in the New York Probate Lawyer Blog, failure to comply with the statutory rules for Wills can result in battles in the Manhattan Surrogate’s Court, or other Surrogate’s Courts throughout the State. The decedent’s intentions regarding an estate plan can be disrupted or destroyed. The rules and procedures, although complex and sometimes appearing to be archaic, are meant to provide certainty as to a decedent’s last wishes and prevent fraud and deception.

A recent case in the New York State Supreme Court, Onondoga County, Castor v. Pulaski, decided by the Honorable Anthony J. Paris on December 14, 2011, shows why the many safeguards to the probate process are necessary. Castor is an action to recover damages for fraud engaged in by individuals who attempted to defraud the Surrogate’s Court by filing and attesting to the validity of a fake Will. The plaintiff, who was the decedent’s son, actually withdrew his objections to the Will in view of the witness affidavits which were, unbeknownst to him at the time, false.

The Court granted compensatory and punative damages against the defendants and noted in its decision: “Based on Defendants’ track record, their testimony is totally incredible except for those portions wherein they admit that they willingly and voluntarily falsely acknowledged Mr. Castor’s execution of his Last Will and Testament when, in fact, they did not so witness his signature and he did not request them to sign as witnesses. They also admit to their subsequent execution of the Attesting Witness Affidavits on November 23, 2005, knowing that the information contained in said Affidavits was not true.”

The preparation, execution and probate of Wills, as well as proper estate administration, is complicated and involves serious consequences. Due diligence by all individuals and family members, as well as professional guidance from estate and probate attorneys, is essential.

November 10, 2011

Inheritance in New York Can Be Forfeited Where the Beneficiary Causes the Decedent’s Death

by Jules M. Haas

Estate beneficiaries in New York can have rights to receive a share of a decedent’s assets in a variety of circumstances. The beneficiary can be named in the decedent’s Last Will or, if no Will exists (“intestacy”), the beneficiary may be one of the decedent’s next of kin (a “distributee”). As provided in New York Estates, Powers and Trusts Law (EPTL) section 4-1.1 a distributee receives a share of the estate.

There are some situations, however, where the estate share may be forfeited by the beneficiary. For instance, EPTL 5-1.2 provides that interests of a surviving spouse may be lost under certain circumstances including the “abandonment of the deceased spouse” (EPTL 5-1.2(a)(6).

Another example of forfeiture that is recognized by the New York Surrogate’s Court provides that a person who murders another forfeits his or her right to inherit from the victim’s estate. This doctrine, which prevents a person from profiting from a wrongful act, seem fairly easy to apply where the murderer is convicted by the crime. The recent case of People v. Borukhova, a Queens, New York doctor who was convicted of hiring her cousin to kill her husband, would seem to satisfy the forfeiture criteria. However, all situations are not as clear. What if a person’s death was due to alleged neglect or mistreatment and no criminal proceedings were instituted against the alleged wrongdoer. Such a situation occurred in Matter of Karp which was decided by New York County Surrogate Kristin Booth Glenn on September 22, 2011 and reported in the New York Law Journal on October 4, 2011.

In Karp the sister and nephews of the decedent claimed that the “decedent’s wife of more than 15 years, intentionally or recklessly caused decedent’s death and should therefore forfeit her interest in [his] multi-million dollar estate.”

After reviewing the extensive evidence, the Surrogate found that the decedent died due to causes directly related to his own requests for termination of certain medical procedures and that no action on the part of his wife caused his death. Therefore, the Surrogate granted summary judgment dismissing the sister and nephews claim.

Although the claims in Karp were dismissed, the case does raise some interesting concerns for both pre-death care and post-death estate settlement. In Karp the decedent was very ill prior to his passing away. Issues may arise as to what responsibility a beneficiary may have to institute Article 81 Guardianship proceedings to have a guardian appointed to assist a person with health care and other personal needs decisions. When a person appears incapacitated can the failure by a beneficiary to assist him or her result in a forfeiture of an inheritance? Also, if a beneficiary is a health care agent under a Health Care Proxy, can he or she lose an inheritance in the event the health care decisions result in the decedent’s death?

Finally, after a person has died, Executors, Administrators and estate beneficiaries may examine the circumstances leading up to death in order to consider whether a proceeding for forfeiture is a viable consideration. Bronx probate attorneys, as well as probate lawyers throughout New York, can review these matters and advise clients as to their rights.

November 8, 2011

Estate Disputes Should Be Avoided But Sometimes Never End

by Jules M. Haas

The New York Probate Lawyer Blog has reviewed many instances and issues regarding estate litigation, Will contests and disputes among heirs and beneficiaries. Sometimes controversies begin before a person dies when they become ill and incapacitated. Relatives and friends can abuse or breach fiduciary obligations in attempting to control a person’s finances before death. Guardianship Proceedings, which are provided by Article 81 of the New York Mental Hygiene Law, are just a rehearsal for the battles that occur concerning assets and Wills after death. Westchester and Manhattan Guardianship attorneys, as well as guardianship lawyers throughout New York, have seen these disputes time and again.

An example of such pre-death contests appeared with regard to the actress Zsa Zsa Gabor. As reported in an article in Estate of Denial by Andy and Danielle Mayorals dated June 25, 2011, pre-death fighting between Ms. Gabor’s husband (her ninth) and daughter revolved around each arranging for her to re-write her Last Will and the sale of her home and personal property.

Even after death occurs controversy regarding a decedent’s estate and affairs can go on for years. It was recently reported by Daniel Kreps in Amplifier on May 6, 2011 that the estate of the late rock and roll star, Jimi Hendrix, was commencing a lawsuit over the ownership of master recordings made during concerts in 1969. Jimi Hendrix died on
September 18, 1970.

Another pending lawsuit involving the ownership of rights to the musical legacy of country singer, Jim Reeves, was reported in an article by Anita Wadhwani in The Tennessean on November 2, 2011. Jim Reeves died in 1964. However, none of the above appear to rival the almost daily notoriety surrounding the death of Michael Jackson.

A recent article in the AARP Bulletin by John F. Wosik on October 19, 2011 entitled “A To-Do List for Estate Planning” provides a brief guide for some estate planning considerations that may help avoid disputes. Among the items discussed are:
(1) A “Health Care power of attorney” known as a Health Care Proxy in New York. This document will specify the persons who can make health care decisions for you in the event you are unable to do so yourself.
(2) A “Financial power of attorney“. This document will specify the persons who can make property management decisions for you when you are unavailable or unable to do so. The terms of the Power of Attorney can be limited and specifically defined according to your desires.
(3) “Wills and Trusts“. These documents provide the foundation of your instructions and reflect the manner in which you want your property disposed of after death. Additionally, proper estate planning through Will and Trust provisions may provide appropriate tax benefits.

Consulting a good New York Estate planning and Guardianship attorney may help avoid the Surrogate’s Court litigation that seems to forever encompass some estates. In view of the complexity of issues often involved in property and business ownership, breaches of fiduciary duty and beneficiary rights, disputes among family members and third parties are probably inevitable.

November 1, 2011

New York Estates Involve Disputes Regarding Lifetime Transfers

by Jules M. Haas

There have been a number of previous discussions in the New York Probate Lawyer Blog regarding disputes that arise when a decedent transfers assets to others prior to death. Such transfers are sometimes made to family members or to non-relative third parties. The problems and disputes that arise from such transfers basically involve whether the transfers were intended by the decedent to replace dispositions that were carefully set forth in a Last Will or Trust. In many instances, these lifetime transfers do not reflect the same estate plan as stated in a Last Will and often benefit one or more beneficiaries at the expense of others.

For example, a person may have bank funds in his or her name in a bank account that is bequeathed equally to a number of beneficiaries named in a Last Will or Trust. The person may have spent many hours reviewing his estate plan with his Probate Lawyer before finalizing the documents. However, prior to death, the person may add one of the beneficiaries to the bank account either as a joint owner or as a named beneficiary. In such a case, when the person dies, ownership of the bank account will automatically be in the named beneficiary and the account funds will not be included in the decedent’s estate to be distributed to all of the beneficiaries designated in a Last Will or Trust. The question that arises is whether the decedent put the beneficiary’s name on the account with the intent to benefit only the beneficiary or whether the name was added due to undue influence or without an understanding that such action would change the decedent’s estate plan.

Such disputes are common in Surrogate’s Court litigation throughout New York including the Bronx and Westchester Counties. Executors and Administrators are very often faced with the estate settlement task of attempting to recover assets for the estate that have been transferred to others.

A recent case in the New York County Surrogate’s Court, entitled Matter of Appleby, was presented to Surrogate Kristin Booth Glen. In a decision dated September 12, 2011 and reported in the New York Law Journal on September 26, 2011, the Court was faced with a number of issues that arose concerning funds that a decedent allegedly loaned to her son prior to her death. The decedent’s executor attempted to have the son’s estate (the son died shortly after his mother) repay these funds to the decedent’s estate. The son’s executor had sought to have the case dismissed on various grounds but the Court, for the most part, decided that issues existed that needed to go to trial. The Court found that questions existed as to whether the monies given to the son were enforceable loans to be paid back to the decedent’s estate.

It is always an important aspect of estate planning, to update and review not only the identity of assets and beneficiaries, but the manner in which assets are owned (ie, individually or jointly, etc.) and the impact such ownership may have on estate distribution.

October 18, 2011

New York Executor or Administrator May Have Rights Regarding The Decedent’s Remains

by Jules M. Haas

Administrators and Executors in New York, sometimes referred to as estate fiduciaries, have many powers and responsibilities. The New York Probate Lawyer Blog has discussed many of these aspects of estate settlement including the identification and collection of a decedent’s assets and the payment of expenses, debts and taxes.

Reference has also been made previously to the common situation that occurs upon a person’s death when decisions need to be made concerning burial and funeral arrangements. When preparing a Last Will, a person can set forth provisions that direct the manner in which he or she is to be buried. For example, a Last Will can state that the person wants to be cremated or to be buried in particular ceremonial manner. Although such directions in a Last Will can be enforced, they are problematic since a Will may not be looked at or even located until after a person’s funeral and burial take place. Moreover, the validity of a Will and the appointment of an estate fiduciary may not occur until many weeks or months after death.

When discussing burial issues with clients, I typically suggest that a good estate plan includes a pre-death discussion of all funeral and burial desires and arrangements with the close family members or friends who would be most likely to make certain that the decedent’s instructions are followed. However, disputes can and do arise regarding the control of a decedent’s remains and its disposition. Section 4201 of the New York Public Health Law attempts to limit such disputes by providing a list of the individuals who have priority to control the disposing of a person’s remains. First and foremost, the statute provides that priority is given to a person who is named in a writing that is signed as provided for by the statute. Absent such designation, a spouse or domestic partner and surviving children are given primary authority. The statute also provides in paragraph 2(a)(viii) that “a duly appointed fiduciary of the estate of the decedent” may control the disposition of remains.

Many different controversies can arise concerning a decedent’s remains. In a recent case, Freiman v. County of Nassau, decided by the Hon. Thomas Feinman (Supreme Court, Nassau County) on September 23, 2011 and reported in the New York Law Journal on September 30, 2011, the Executor of an estate sued the Nassau County Medical Examiner (“ME”) claiming that the ME performed an autopsy without consent from the Executor and contrary to Public Health Law Section 4210. The Court dismissed the case finding that the limited extract of a blood sample was not an autopsy and was performed with consent.

As shown by the Freiman case, disputes regarding a decedent not only involve such common proceedings as Will Contests and kinship disputes, but can relate to events occurring immediately upon death involving the disposition and handling of a decedent’s remains.

October 3, 2011

New York Probate and Administration Depend Upon the Domicile of a Decedent

by Jules M. Haas

The New York Probate Lawyer Blog has talked about many situations involving the probate of a decedent’s Last Will or the intestate administration of an estate where there is no Will. These proceedings comprise the most basic avenues for a decedent’s estate settlement.

However, even more fundamental, and as a preliminary step to commencing such proceedings, a determination needs to be made as to whether the New York Surrogate’s Court is the appropriate Court to initiate the case. If New York is not the proper forum, the Court will not allow the proceeding to be filed. It may be that another state (i.e., Florida, New Jersey), may be the proper place to file and administer the estate proceedings.

Choosing the proper forum or Court is not always an easy task. This choice of forum begins with a finding of the decedent’s “domicile”. Domicile is an extremely important issue since it will not only affect the location of the Court that is appropriate to process the decedent’s estate, it may very well determine the State law that controls the issues surrounding estate administration such as spousal and kinship rights. Domicile also affects many other issues such as taxation.

Domicile essentially refers to the place that is considered a person’s primary home. A person can have many different residences around the world but only one primary home or domicile. Domicile is defined in the New York Surrogate’s Court Procedure Act Section 103 (15) as “A fixed, permanent and principal home to which a person wherever temporarily located always intends to return.”

Domicile can be difficult to determine where a person has residences in more than one state or country and divides his or her time between these locations. Among the factors that a Court reviews in deciding an issue of domicile are where a person files state and local income taxes, and where a person has a driver’s license, voting registration, and other social and business connections.

As noted, domicile is important because it may determine various rights. For example, a decedent who is a domiciliary of New York will be subject to New York statutes for the purposes of determining the decedent’s distributees or next of kin. Statutes of a different state, for example, New Jersey, may differ from those in New York and specify different individuals or interests in a decedent’s estate. The result may cause variations in amounts inherited or even rights to an inheritance.

A recent example of the importance of determining domicile was seen in Matter of Ranftle, decided by New York County Surrogate Kristin Booth Glen on September 14, 2011 and reported in the New York Law Journal on September 23, 2011. In Ranftle a question arose concerning whether a decedent was domiciled in New York or Florida. The importance of this question centered around the fact that unlike New York, Florida would not have recognized the decedent’s same-sex marriage that took place in Montreal, Canada. Therefore, if Florida law controlled, the decedent’s spouse may have lost inheritance rights in the Court proceedings. After an extensive review of the numerous factual contacts the decedent had both in New York and Florida, Surrogate Glen determined that the decedent was a New York domiciliary.

As a New York Probate attorney I have reviewed many cases with clients where an initial determination must be made as to the proper Court in which to commence a probate or intestate administration proceeding. Additionally, a thorough review of a client’s domicile is imperative when preparing an estate plan so that the provisions of a Last Will or Trust will be in accordance with the relevant State laws.

September 29, 2011

AARP: Dads Have Fewer Heart Problems, But Still Must Plan Estate in New York

by Jules M. Haas

A new study by AARP, university research and the government shows that fathers are less likely to die of heart-related illnesses than men without children, the Associated Press reports. The study is considered the largest ever to look at fertility and mortality and involved 138,000 men nationwide.While this may be good news for dads, genetics and lifestyle must also be factored into studies about heart health. This study may present a good time for fathers to discuss heart health, it also can be used as an opportunity to talk about New York estate planning.

New York probate lawyers have seen many older New Yorkers struggle at the end of their lives, perhaps after diagnosis of an illness or disease or following an unexpected accident. Too often, seniors may wait until dementia or other illness robs them of their ability to plan. .

Men in America suffer from heart problems. Long hours earning a living and raising a family can take a toll. Taking the time to ensure loved ones are protected can bring peace of mind. Thus, men in their 30s, 40s and 50s should have plans in place. The process does not have to be complicated. And not just those with significant assets need estate plans.

The large-scale study found that marriage, having many friends and even having a dog as a companion, can lower the chances of heart problems and cardiac-related deaths. And the study shows that having children may be motivation for fathers to take care of themselves physically.

Researchers found a link between infertility and later health problems. Testosterone levels can affect good cholesterol, the article reports.

But the study also had some caveats:

Researchers couldn’t calculate how many in the study were childless by choice and not because of infertility.
They didn’t study the men’s partners’ infertility problems.
They didn’t calculate blood pressure or cholesterol numbers.
Fewer than five percent of participants were minorities.

While it is an interesting topic and certainly one to consider, it may not necessarily apply to everyone. But what does apply to everyone is proper estate planning — for both those with children and those without.

For the fathers, New York estate planning is critical in order to ensure their children are properly taken care of when they pass on. When a person is nearing death, they don’t want the added stress of worrying about where their money will go or if their children will be left with valuable or sentimental heirlooms.

For the childless, the need is no less important. Even if there aren’t children to leave assets to a spouse, siblings, other family members, friends or even a trust established to support philanthropic desires can result from careful planning.

Don’t wait until major health problems have struck to take the initiative and plan out your will or estate in New York. Have peace of mind and focus on more important things in your time of need.

September 13, 2011

Do Women Care Less About Estate Planning in New York?

by Jules M. Haas

As the New York Probate Lawyer Blog recently reported, women in New York and elsewhere are resistant to planning their estate. A recent Forbes article encourages women to take the necessary steps.

While women aren’t alone in their procrastination of estate planning in New York, they seem to take an approach more lax than their male counterparts. While no one likes to plan their death and what will happen to their assets after, it is a critical aspect of adulthood. Many women take to the task once they realize its importance as, in many ways, they are more organized and more conscientious — particularly when it comes to providing for children.No one really wants their assets dealt with by a judge and other strangers. And if you have children, they must be taken care of, with specific plans to help them live their lives without the aid of parents. Yet a recent survey found that 47 percent of women were concerned with their weight, compared to 43 percent who care about protecting their assets and contacting an experienced New York City Probate Lawyer to help them get their affairs in order.

A new Forbes article, by the same author, looks at the topic again, questioning why woman are so resistant to taking the matter into their own hands. To be fair, men are not exactly lining up at the doors of estate planners. It’s a problem for both sexes. A reluctance to deal with death is just part of it. Another is the mistaken belief that only the rich need such services. In reality, proper estate planning and making the most out of your legacy is even more important for those middle class families of moderate means.

By most accounts, the average person believes death is a far-off event that can be addressed at a later time. But the reality is that these estate matters must be handled now, with sound mind and with the best interests of the person and their loved ones in mind.

As the author of the article states, women with children are unlikely to plan their estates. Yet the 10-year anniversary of the Sept. 11 attacks should remind us all that planning is essential, even when chances of death seem remote. And older women are even more behind in their estate planning. Because they tend to live longer and marry older spouses, they are more likely to be widowed and must make decisions on what will be left to survivors.

Here are a few estate-related questions for women to consider:

What’s the difference between a will and a living trust? Both a will and living trust are documents able to transfer assets, but only a will can be used to appoint a child’s guardian. A living trust can hold assets while you are alive, which can have a number of benefits.

Whom to trust? The power of attorney is critical and should appoint a person you trust, like a family member or close friend.

Who will take care of the kids? Without proper planning, children can be thrust into a custody battle or maybe no family members will be willing to step up and take care of your child. That’s why filing formalized documents can clear the air and decide who will care for the children subject to Court oversight.

What is in savings? Make sure there is money set aside to pay for funeral costs, burial and other short-term related costs because often, joint money or retirement accounts can be frozen for some time.

August 25, 2011

New York Women Must Plan Out Their Estates

by Jules M. Haas

A recent Forbes.com article by a Forbes Senior Editor makes the case for why women should be taking a more thorough approach to wills and estate planning in New York and throughout the country.

The article leans on a recent survey by EZLaw, which the New York Probate Lawyer Blog commented on recently. According to the survey, which was conducted with a random sampling of Americans about the importance of wills and estate planning, women were more concerned with their weight (47 percent) than with the protection of their assets (43 percent). All told, the majority of those surveyed believe that having a will is important, but few have the documents in place.In the last half a century, women have made many positive strides in gaining rights, working toward equality in the workforce and in their ability to join the hierarchy of many of the country’s Fortune 500 companies. For this reason and for many others, women, just like men, must take an interest in protecting their assets. But this is best done with the knowledge and experience of a New York City Estate Planning Attorney, who can guide clients through the complex area of estate planning, wills and trusts.

“Does this mean women have more will power when it comes to their waistlines, than when it comes to estate planning?” the Forbes article’s author asks. “If so, it’s a shame, because estate planning affects women profoundly.”

According to the article, among Americans 65 and older, 42 percent of women, compared to 14 percent of men, are widowed. Women are expected to live longer. This longevity combined with a woman’s tendency to marry older spouses and earn less over the span of their lifetime, means they could suffer the consequences if their estate isn’t planned properly.

“Perhaps worst of all is how a lack of planning can affect families of young children,” the author writes. “Without a will, if your children are minors and you were a single or surviving parent, a court will appoint a guardian for them.”

The author implores women to have the talk about estate planning not only with their spouses, but also with their adult children and their own parents.

With spouses: Relating the end of life to current events, a person they know who’s sick or even wanting to provide for the kids may be ways to bring up this less-than-attractive topic of conversation. But either way, it needs to be done. Estate planning isn’t just a when-I-die necessity, it should be done so that the individual will be taken care of if their health fails at any stage of life.

With adult children: While a parent to an adult child has no obligation to change their plans based on their kids’ preferences, talking it over can help. Explaining the decision rather than making it a surprise upon death can save lots of frustration and sibling rivalry down the road.

With your parents: This can be difficult because some people would view this as being greedy, but it is important to talk with your parents if you notice a decline in mental capacity later in their life. Once they lose competence, they can’t make binding commitments, so estate-planning documents must be handled before that happens.