Monday, December 7, 2009

Estate Planning: Never Too Early, Often Too Little, Too Late

Yakima Herald

Eric Gustafson has seen it too many times.

Families estranged or survivors forced to spend large sums of money in the absence of an estate plan or -- just as importantly -- a plan that hasn't been updated to account for changed circumstances such as divorces or deaths.

Such plans should include a durable power of attorney for health care and finances, a will, a community property agreement for a couple and, in some cases, a revocable trust.

"It can destroy relationships if it is not well thought out and planned. You can have family members who will never speak to one another again," said Gustafson, an attorney in Yakima for 36 years and a certified elder care attorney who focuses his work now on estate planning.

"My job as an estate planner is to plan for the worst and then hope for the best," he said.

Yet only a minority of people have taken the steps necessary to see that their wishes are carried out if they die or are incapacitated.

"It amazes me how few people have an estate plan," he said.

Gustafson's experience is borne out in a 2008 poll commissioned by AARP on end-of-life issues.

The poll of more than 1,000 respondents suggests that fewer than half of people have addressed the elements of estate planning. A last will and testament had been completed by 45 percent of those who responded. But for other elements of an estate plan, slightly more than a third had a durable power of attorney or a living will that guides decisions on health care in cases of incapacitation.

People between ages 35 and 49 have a much more spotty record when it comes to estate planning. Fewer than one in three have a will and even fewer -- one-fourth -- have a durable power of attorney for health care.

The percentage of those who have completed estate planning increases with age as people acquire assets. But for younger people with children, an estate plan is even more important.

"It's important for people with children to have a will because you need to provide for children even up to 30 years old," he said. "Clearly, before they are 18 you need that to designate who you want to be guardian and not have a judge do it who doesn't know your wishes."

He said a community property agreement between spouses in a first marriage allows co-owned property to go to the surviving spouse.

"All property co-owned by the parties passes under the contract to the surviving spouse. It avoids probate on the first death," he said. "You can virtually transfer all property under a community property agreement to the surviving spouse."

Estate planning attorneys advise consumers to avoid will kits with fill-in-the-blank forms. Such kits are made generic to try to fit various laws in various states, but they may be too broad to suit a person's needs or can leave questions that must be sorted out later.

"Planning an estate can be a very complex thing depending on what is going on," observed Steve Hartnett of San Diego, the associate director of education for the American Academy of Estate Planning Attorneys. "A proper estate plan integrates all aspects of a person's goals with their assets."

AARP advises against people sitting down at the kitchen table and writing out their own will because of the chance for errors that cause problems later. Few states recognize homemade wills, according to the organization.

But short of an estate planning attorney, there is help available online and the field is growing., a personal finance Web site, reports that some sites offer users access to an attorney to check your work. Others don't.

Prices can range from as little as $20 to as much as $225.

But discourages those who have significant assets, own a business, have children or are in a second marriage from going the online route.

Financial planners are great at helping clients develop an investment plan, but they lack the expertise to deal with estate plans.

If you use an estate planning attorney, anticipate preparation of an estate plan taking from a month to six weeks to complete.

Keeping the estate plan up to date to allow for changes is also important.

Gustafson recalls one case in which a client whose elderly aunt lived half a state away put her neighbor on her checking account to pay bills and purchase groceries. The aunt, suffering with health problems, also transferred funds from investments to cover medical bills.

When the aunt died, the neighbor received a substantial sum of money as a joint tenant of the checking account.

The money had been intended for Yakima relatives in the woman's will. But having the neighbor's name on the account trumped the will.

"We see it all the time where family members put someone on their bank account or trust account. It changes the legal consequences of where that asset goes," he said.

Beneficiary designations on life insurance and retirement accounts also prevail even if a will prepared years later names a spouse.

And if no estate plan exists, a person who dies intestate -- as the lack of a will refers -- will have the laws of the state determine what happens to their assets.

"You want to control where your assets go," Gustafson said.

Hartnett agreed, saying those who die without a will may have wanted assets to go to a domestic partner, a friend or a charity, none of which is accounted for in state law.

"The best solution is an estate plan that is tailored to your circumstances. While the intestate provisions may satisfy a small number of people, they don't accomplish the goals of the ordinary person," he said.

Based on his experience, Gustafson said he believes people delay taking action because they don't want to face their own mortality or are concerned about cost. But costs for a plan that covers all assets are often lower than buying annual homeowners and auto insurance.

He estimates an average couple can have a qualified estate plan -- with key documents included -- for $600 to $1,000.

"The least cost is when you do good planning," he added.

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