Estate Plan Check-Up 9: Know Where Your Documents Are – and Review Them

By Deirdre R. Wheatley-Liss, LL.M, CELA and Crystal West Edwards, Esq., CELA

You can have the greatest estate plan documents ever, but they are no good if nobody knows where they are. You should know where your documents are – your will, your power of attorney, your healthcare power of attorney, your trust document (if you have one) – and you should make certain that your executor or someone else you trust knows where to find them.

Pull out the copies that you have. If you don't have copies, contact whoever drafted them and ask them to send you copies. Also, and this is critically important, find out where the originals are, because should something happen to you, your executor will need the original will document.

In your documents, you should be sure that your executor has all the information he or she will need to carry out your wishes.

Contact information. Your executor should be able to determine from your documents if you have life insurance and who your life insurance advisor is and how to contact them. He or she should be able to contact your accountant, who can help with tax filings and tax questions. And your other fiduciaries – a trustee or guardian – how is someone going to get in touch with them? While your documents usually have addresses, it's helpful to have phone numbers and e-mails as well.

Passwords, passwords, passwords. When somebody passes away these days, their executor needs to gather up documentation of their assets. And given that so many people now do all of their banking and other financial activity online, they have multiple passwords.

You should have a list of passwords which your executor can find or, even better, use a password manager, like LastPass, and give your executor access to that one LastPass password.

Reviewing Your Documents

When we're doing estate planning, we're making our best guess as to what's going to happen. It’s important to review your estate documents from time to time to make sure they still make sense given changes in the law and changes in your circumstances.

Among the issues you should consider:

Tax considerations. Tax laws change over time, sometimes dramatically. As recently as 2018, the State of New Jersey had an estate tax, and there were planning frameworks that were in your will that made sense then, but they won't necessarily make sense now.

Secure Act. In January 2020, the SECURE Act was passed and the SECURE Act made significant changes to how a non-spousal beneficiary – a child, a sibling – can inherit a retirement account, an IRA, or a 401-K. Your documents, if they were drafted before December 2019 are not going to have appropriate language in them – not because your attorney didn't do a good job but because it was a whole new law and it's not been incorporated into the document. (If you have worked with us, just give us a call. We'll go through your documents with you.)

Specific requests. A lot of times, people say in their will, “I leave $10,000 to this person and $5,000 to that person. I leave the vacation house to another person.” As you review your documents, ask yourself: is this still somebody you want to leave money to? Is this the right amount of money if your assets have changed? If you are leaving them a thing, does the thing still exist? As you review your documents, make sure that your documents reflect your current circumstances and your current wishes.

Pets. We have more and more clients who are as concerned about their fur babies as their actual adult babies. After you pass, who is going to take care of your pets? Are you going to give some money to the caregiver to offset the cost of care? Give some thought to that the same way that you would for everybody else in your family.

Distribution terms. The way that estate plans are written, the language is very dense. And you should be sure you understand what all of the language in your document means. If you’re in doubt, call the attorney who drafted your documents and ask them, “If I were to pass away, what exactly does this mean, and does this still makes sense?” If it does, great. If it doesn't, maybe consider some changes.

Your fiduciaries. Think about your executor, your guardian, and your trustee. We can write the most gorgeous estate plan in the entire world. But it is the people you name to carry it out who are going to determine how successful it is. Make sure that you're naming people and successors with whom you're comfortable.

(Incidentally, the most frequent reason that estate plans are updated is to change who the people are that are in those fiduciary roles. Those sorts of changes can be done quickly – for example, as a codicil to the will or an amendment to a trust.)

Funeral Instructions. In the wake of COVID-19, we have been getting a lot more questions about funeral instructions – whether and how to leave instructions for how you want to be honored and remembered as it relates to funerals and memorials.

Many of our clients prefer not to think about when they die – and what they would want in terms of funeral and memorial arrangements. They prefer to leave those decisions about burial and cremation to family members and/or the friends who survive them. And that’s fine.

However, if you have any specific wishes with respect to burial or cremation – or it’s important to you that your family not spend any money on your funeral – it’s important to have that written down. In New Jersey, those funeral instructions, and the appointment of a family member or friend to make those funeral decisions for you, must be stated in your will.

This post is for general informational purposes only. The information provided may or may not apply to you given the specifics of your situation. For a video presentation of this information, please visit Estate Plan Check-up. For more detailed information, please visit www.porzioplanning.com or contact us for a free 20 minute telephone consultation.