While it is a near certainty that some day you will die (notice how a good attorney never lets himself get painted into a corner), the truth is that you will more likely experience a long-term disability than a catastrophic death. If all you have is a will, you’ve done nothing to plan for that disability. A comprehensive approach will include planning for your disability as well as your passing.

In the end, estate planning should be about giving you the control and flexibility to live your life with peace of mind, knowing that there are safeguards in place that will help you provide for your loved ones if you are disabled. An effective estate plan will let you give what you want, to whom you want, when you want them to have it, and in the way you want them to have it. All the while providing a way to allow you to pass along your wisdom with you wealth.

Posted by Victor Medina
Medina, Martinez & Castroll, LLC

1.  What assets will you be putting in the will?

Take an inventory of your significant assets.  These should be the things that you want to give to other people and hopefully, these are the things that other people want to get from you.  (I suggest the garage sale test — if you’d include it in your garage sale someday, skip it).  Note — there are some assets that cannot be passed by your will — and your lawyer should know what those things are (and why they shouldn’t be included in your will).

2.  Who will you be giving your assets to?

For the most part, this is a very straightforward task.  A few notes, though — first, there are some restrictions on your ability to disinherit certain relatives.  Second, you should think about where you want your assets to go if your first choice is not around or refuses your generosity.

3.  Who will administer your will?

This person is called the executor.  There are really only two qualifications for an executor or trustee.  First, you want a person of impeccable integrity.  Second, you want a person with good common sense.  You also want to make sure that this person is aware of your desire for them to serve as executor (and are agreeable to that role) and as always, have a back-up in mind.

4.  Who will care for your children?

If you have children under the age of 18, you’ll want to think about who will take care of you children, should you die before your kids are adults.  This section requires more thought and explanation than I can give you here in a blog post, but guardianship is an important concept that requires much thought.  For instance, will your chosen guardian have sufficient assets to raise your children?

5.  Who will care for your children’s assets?

In addition to choosing a guardian for your children’s welfare, you need to think about who will care for the assets that you leave to your children if they are still minors.  This person is known as a trustee.

6.  Who will witness the execution of your will?

The decision of who these people will be is not as important as following the necessary procedure to ensure that your will…will be deemed valid and enforceable.

1. Select an attorney who is an excellent listener.

Too often clients are telling their story to a lawyer who is busy planning based on what they think is going on with this client, and not listening to what the client actually has to say. I find this practice is often the case with a “wills factory” where the attorney is itching to pass your case off to a paralegal and get to his or her next intake meeting.

Good estate planners will listen to you during an initial interview and continue to listen to your concerns throughout the process and into the future. Which brings me to.…

2. Select an attorney who doesn’t bill you for every 5 minute conversation, fax and mailing.

This one kills me. I’m always wary of a professional who is more concerned with “nickel and dime-ing” his clients, than he is about providing value at every opportunity. I suggest you steer clear of the former.

Instead, I suggest that you engage an attorney who flat-fee bills for the estate planning work, including all of the interviews and meetings that need to occur to get the estate plan done. While estate administration is akin to litigation in that the time involved is difficult to predict, and therefore hourly billing is a better model for both parties, estate plans are fairly predictable matters in the resources they will consume. They vary in their complexity from client to client, but a lawyer worth his or her salt should be able to quote you a flat fee for that work, and that fee should include phone calls, meetings, etc.

3. Select a lawyer or law firm that plays an activel part of your (or his) community.

This tip is less about reducing your commuting costs and more about stability and long-term planning. You want a lawyer who will remain in the area (and in the practice) long enough to address your growing concerns and needs. You want a trusted advisor who will remain available to you when you need him the most.

This is best achieved by selecting a lawyer who is a pillar of the community in which he (and/or you) reside. This attorney should be involved with local schools or charitable organizations (whether or not in his or her actual practice), and should be known by others in the community. This is good news for you, the client, because it means that (a) the lawyer has a reputation to uphold, which means he’ll most likely treat you right, and (b) the lawyer has planted roots in the arean will be around for the long haul.

4. Select an attorney who fits your personality.

Some clients are looking for a lawyer in a stuffed shirt and standoff-ish attitude to do their estate plan. If you are one of these clients, please let me introduce you to a few colleagues of mine — there are many who will fit the bill.

On the other hand, if you’re looking for someone to listen to your concerns and work with you in an intimate manner to help achieve your objectives, make sure that the attorney across the table from you is someone who you instinctively trust and with whom you feel comfortable. They say that your first instinct is usually the right choice, and I believe that’s especially the case with the lawyer who will serve as your family’s legal advisor.

Let me spoil the surprise and give you the answer up front.

You should have:

A Durable Power of Attorney for Health Care
A Durable Power of Attorney for Finances
A Living Will

The first and second one let you name who will make decisions for you concerning health care and money, respectively.  A living will tells doctors exactly what kind of care you do and don’t want to receive if you are terminally ill or incapacitated.

Fortunately, these are not bid ticket items in the world of estate planning, so there’s no real reason not to get them done.

The news is filled with battles between related parties fighting over the wishes of an otherwise incapacitated person. The US Supreme Court has ruled that a person has a right to direct the course of his own health care, even if family members disagree with those choices.

Although it’s difficult to think through all of the situations these documents need to cover (withholding of pain medication, food and water, etc.), you owe it to your loved ones to make clear your wishes in those situations.

On a related note, if you are the parent of a minor child, you absolutely, positively need to have a will setting down who you want to have custody of your child in the event of your death.

In short, unless you want to subject your loved ones to drawn out legal battles and financial hardships in the event of your incapacitation, if you don’t have these three documents then get thee to an attorney and get these documents drawn up.