When preparing for your death or incapacity, please be aware of the following general rules:

Make Sure You Identify All of Your Assets

One aspect of estate planning is making sure your assets are distributed as you intend upon your death. While our office may have prepared your Last Will and Testament or living trust and other accompanying documents, the reality is that the planning you do with an attorney does not end with your documents. You must also understand how all of your assets will be distributed upon your death. You need to know the beneficiaries of your life insurance policies, IRAs, 401ks and annuities, which you are in control of. Your Last Will and Testament controls only those assets in your own, individual name and your living trust only controls assets in the trust. To assist yourself and your family, keep a running list of all of your assets and the beneficiaries for each.

Make Sure Your Safe Deposit Box Has a Co-signer

If you die with no one else with access to your bank deposit box, your heirs will have to go to court to gain access. Over the years, we have gone to the extent of securing a court order to access a deceased owner's safe deposit box only to discover that they contain few, if any, assets of any value resulting in needless time and expense. If you want to maintain a safe deposit box, always consider granting permission for someone else to access it should you pass unexpectedly and make sure they know where the key is kept. One option, if you have a living trust, is to re-title your safe deposit box into your trust. When you die, the box ownership stays in the name of the trust.

Update Your Power of Attorney Periodically 

We generally advise our clients to update their power of attorney every five (5) to ten (10) years. There are two reasons for this. First, banks and other financial institutions are reluctant to honor older powers of attorney, which can cause unpredictable problems. Secondly, powers of attorney laws and formats can change, and get better, over time. The powers of attorney that we draft now are, frankly, better than the ones we did five (5) years ago due to changes in the law and our legal experience.

Know Where Your Original Documents Are 

We frequently receive calls from our clients concerning lost documents (wills, powers of attorney, living wills, etc.) and asking for new copies of their signed documents. We also open a number of probate sale estates due to the decedent's lost Last Wills and Testaments. Although this should go without saying, please designate a safe location for your estate planning documents and be sure to tell someone where you put them. Review your estate plan periodically: You should periodically review your estate plan and ask yourself the following questions:

  • Does my current Last Will and Testament accurately reflect my wishes?
  • Do I know where all of my original estate planning documents are?
  • Are my assets titled to my trust? (when applicable)
  • How old is my durable power of attorney?
  • Who are the beneficiaries of my life insurance policies, IRAs or annuities?

In summation, an ounce of prevention is better than a pound of cure in estate planning. Please schedule an appointment if you have any estate planning or elder care matters for which you have concerns.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney