Summary: There are several steps that go into truly complete estate planning. Once you’ve decided upon your plan goals, retained counsel and executed the necessary legal documents, you’re still not finished. In order to save your loved ones (or the other people who might need access to your documents) time, money and stress, you need to ensure that you have a plan for your plan; in other words, you need to make sure that your documents are stored in a safe place that can be reached by those whom you need to have access, and that they have the tools and information they need to get the documents when the time comes.
You have done everything you need to do
to in order to “check off” the item of estate planning from your “to do” list.
You’ve retained knowledgeable counsel, and you’ve executed a clear and
well-thought out set of planning documents to achieve your goals. You’ve
undertaken the steps needed to fund your revocable living trust. You’ve communicated
with your loved ones about your plans. Except for calendaring a periodic plan
review to make sure your plan stays fully up-to-date, you’re all set, right?
Not necessarily. Do you have a plan in
place to ensure that, after you’re dead, your loved ones (or other people who
need access to your planning documents) can find them? This step is easy to
overlook, but failing to accomplish can have dire consequences.
An example of this took place recently
in Kansas. In the fall of 2014, Ray died at a hospital in Topeka. He was 93. By
that time, he was a widower, survived by three children: a stepdaughter who
lived nearby, a son in Texas and a daughter in Kansas City. Before Ray died, he
told his stepdaughter that he had made an estate plan. He told her that the
will was either in a safe deposit box at the bank or else it was at the local courthouse.
After Ray died, the stepdaughter, the
daughter and the daughter’s two children searched for the will. They went to
Ray’s safe deposit box, but they found only an unsigned will codicil. Next,
they went to the courthouse. Despite speaking to multiple people, at both the
clerk’s office and the recorder of deeds’ office, they left with no will. They
checked Ray’s home and they checked with Ray’s attorney. None of these efforts
yielded the will.
Sometime later, the stepdaughter hired a
new attorney who found the will. 11 months had passed. Once they found it, the
stepdaughter submitted it to be probated. In Kansas, you generally only have
six months to submit a will to probate. Ultimately, this case went to the Court
of Appeals, which concluded that the will could not be probated and the estate
had to proceed as an intestate one. The only scenario, under Kansas law, for
extending the deadline required that someone knowingly hid the will. In this
case, there was no one who had engaged in knowingly concealing the will, so the
deadline could not be extended and the will could not be probated.
What this unfortunate outcome meant was
that, instead Ray’s estate plan going forward in the manner that he had
dictated in his will, his estate would be distributed according to the
intestacy laws created by the Kansas Legislature. The control over his legacy
that Ray tried to assert by creating a will got thwarted because no one found
the will in time. This is an important lesson for anyone who has engaged in
estate planning. Part of complete planning is making sure that you leave clear
instructions so that the people who need to access your documents after you die
or become incapacitated can do so, and do so in an easy and efficient manner.
Even if your plan isn’t thwarted by statutory deadlines for submission to
probate, you still probably don’t want your loved ones (or attorneys) to spend
hours, days, weeks or even months trying to discover where your planning
documents were kept. With a proper plan for your plan, you can save your loved
ones, time, money and a lot of stress.
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