I do a lot of presentations before groups and one of the most common questions I am asked is “How often do I need to update my estate plan?” As with just about any question asked of an attorney, the answer is, “It depends.”
It depends on both changes in the law, both federal and state, and it depends on changes in your life. In my practice we try to keep our clients up to date on major changes in laws with our newsletter. However, not every new statute or case will make it into the newsletter and as a practical matter we cannot inform our clients more specifically about new laws that apply only to them.
The obvious second prong here is that we in our office cannot possibly know about changes in our clients’ lives unless our clients tell us about them. When we finish an estate plan we provide our clients with a list of the types of changes that might trigger a need to revisit their estate plans: marriage, divorce, birth of a child or grandchild, death of a family member, trustee or executor, etc. The truth is, though, for many clients, when major life events occur, their estate planning attorney is not the first person who comes to mind.
We recently worked with some new clients who had been together as a couple for many years but never married. They each had an estate plan created years ago by another attorney and they met with me because they wanted to make a few changes. As we talked, I discovered that they now owned a vacation home together, with half of the home being owned in each of their trusts. I was very pleased to see that they had remembered to title newly acquired assets in the names of their trusts. Clients don’t always remember to do that. What they had not done in all the years they owned this property, however, was update their estate plans to address what would happen if one of them died or became incapacitated. What they each wanted was for the other partner to be able to continue using the home for as long as he or she wanted to, to be able to sell it and buy something to replace it or just to use the cash if needed. Then after the second one died, whatever was left would be divided among their children. Their trusts were completely silent on this issue. If one of them had died, the children of that decedent would have inherited half of the vacation home because that is what the parent’s trust said. The result would have been some tense, difficult negotiations at the very least and some ugly and expensive litigation at the worst. And the funny thing is that this issue was not what the clients came to talk to me about, they hadn’t even thought about it.
So in answer to that common question, my answer is to take your trust out at least every three years and read through it to see if it makes sense for your life. To be on the safe side, why not schedule an appointment with your attorney to go over it and see if the attorney spots any problems? Yes, it will cost you a few hundred dollars, but think of that as an insurance policy against potential family disharmony and chaos?