The older we get, the more obituaries we read of people our age, older or even younger. I am 58 years old and mortal. Death is inevitable for us all and is often preceded by disability.
The wise ones among us face this disturbing reality and plan for it. Often it must be done on an expedited fashion. For example, an oncologist may tell her patient the bad news and recommend that he “get his affairs in order.”
There are just as many cases where the death or disability is an utter surprise and shock. In such cases the fatal car accident victim does not have the same warning as the cancer patient, in order to prepare their documents in a methodical fashion.
Below are examples of people and their families where substantial problems were triggered by failure to do an estate plan in timely fashion.
1) A healthy 52-year-old married woman with no estate documents suffered a debilitating stroke and tragically needed to remain in a long-term care setting. She did not have a Power of Attorney and was not cognitively capable of signing one. Her husband of 25 years was forced to go to Probate Court and engage in the agonizing and expensive process of getting a conservatorship over his wife.
2) A dying 60-year-old man sets up his retirement accounts so that they pass to his sister automatically upon his death. This is wise.
However, he does not consult an attorney. His mother had transferred the house to him many years ago subject to her life estate. As he was dying, the son failed to address the fact that he owned the house. At his death the house passed back to his mother because he had no spouse, no will and no children. The elderly mother then re-owned her property which was now subject to her long-term care costs.
3) A 42-year-old homeowner man in a 10-year partnership with his girlfriend and has no estate plan. He dies suddenly in a car crash. He has a 16-year-old from a prior relationship and an 18-year-old. The 16-yearold is considered a minor beneficiary of the estate and now owns the house with her brother. The court will impose a trust on the child and create substantial bureaucracy. Meanwhile his survivor girlfriend and her children are left at the mercy of the trust and the adult child of decedent.
4) A couple in their 70s starts the estate planning process. After an initial interview they elect not to proceed. Three years later they return but at that point the wife’s Alzheimers prevents her from being able to sign documents. In order to pursue asset protection planning the husband is forced to go to Probate Court to obtain a conservatorship. The court advocate on behalf of the disabled spouse mandates that a portion of the estate not be protected from nursing home costs but rather set up in a trust for the elder. The assets in the trust will likely never be used because she will soon need long-term placement where all her care needs will be met. The commonwealth will then recoup those trust funds via Medicaid rather than have them inherited by the couple’s child.