Elder Law Report
Elder Law Report
Ensuring Your Estate Plan Stays Current: Expert Advice on Updating Legal Documents
Discover the nuances of updating your will or trust, including when to opt for a codicil versus drafting a new will entirely. Jane and Jordan provide clear steps on executing these changes properly to avoid legal pitfalls down the road. They also delve into the practical aspects of revising trustees or beneficiaries and managing real property across state lines. With the help of an attorney, you can ensure your documents align with your current wishes, giving you peace of mind. Don’t miss out on valuable tips for handling your estate planning needs—visit McIntyre Elder Law's offices in Hendersonville, Shelby, and Charlotte, or explore their resources at www.mcelderlaw.com.
and thank you for joining us. My name is Jane Deere-ester with McIntyre Elder Law, here for our Elder Law Report on updating your estate planning documents. I'm joined by my colleague, ordan Bentley in Charlotte today.
Jordan Bentley:Good to see you.
Jane Dearwester:Good to see you this morning and we're going to be talking about how to update your estate planning documents. We're always encouraging people. Step one is having your estate planning documents in place in the first place right, getting them done. But once you have estate planning documents in place, you can't just disappear and forget about it. You really have to continually be vigilant and aware of your estate plan, because life is always going to change and your estate plan is going to need to change with your needs. So we're going to talk about a few different estate planning documents and what it takes to amend them. And then also, if you have documents that you did in another state and now you're living in North Carolina, it's definitely a good time to check in and change those.
Jane Dearwester:But generally, our advice is any major life change is a time to pause and potentially amend your estate plan. Maybe you need to do it, maybe you don't, but at McIntyre Elder Law we have a process where we have an annual review. So every year, on the anniversary of your signing date, somebody from our office is going to reach out, check in with you and see if any changes have happened and if we need to do any updates. So sometimes I was going to say most of the time but it really just depends on the person and their life. We check in, they're like no, I'm good this year, I'm good on year two, but maybe in year three something happens. You sell the house, somebody gets married, divorced, somebody has kids, has grandkids. So any of those things kind of should trigger you to look back at your documents and decide, hmm, is it time I made a change?
Jordan Bentley:Right, and we'll talk about how to do that, the steps and what you can do to make those changes. And you mentioned a couple of the situations for the why right? Why would you want to review and potentially update your estate plan? I think you just said marriages or somebody you know. You get divorced. You could have, you know, siblings or parents listed as your executor, your trustee. Maybe they've gotten older now and you don't think they're going to be able to do the job you want to replace them. You know, maybe they've pre-deceased you and you need to replace them. Um, maybe your children, you know, grew up and they're no longer minors and we want to. We accounted for them being minors and now they're not. Um, you know anything. You sold a business, you sold property, you bought property, just all kinds of things.
Jordan Bentley:If anything with your family, with your health, with your assets, anything in your life really that you think might impact your plan and what you want to do, those are those major life events I think that you're talking about Jane, and any of those are good reasons to want to review and make sure that the plan still works for you.
Jordan Bentley:And, like Jane said, you don't always need to make a change. You don't always need to update it. We try to make sure that we have contingencies and backups in place when we initially get your estate plan set up and draft these documents for you, but it's a good idea to review them. If nothing else. You get peace of mind that you're still protected, you're still good to go. But oftentimes those situations will dictate that you need to make a change, update something, add something into a know, dictate that you need to make a change, update something you know, add something into a trust. Maybe if you purchased a home and you have a trust, things like that, and you know I think we're going to talk a little bit about how you do those things.
Jane Dearwester:Yeah, yeah. Something that came up for me is all of these trigger events are important to talk about. That may trigger a change in revising your documents, but also I think it's important to know you can just change your mind. I like to tell people that a lot. That's like you don't even have to have a good reason to change your documents. You can say you know what I want to change this, that's all. That's all you got to have. It doesn't have to be anything major. You can literally just change your mind.
Jordan Bentley:It's your estate plan, it's your wishes, it's your intentions, and I think that's the overwhelming point. I'm glad you brought that up, because we kind of skipped over it. Yeah, all those reasons might, you know, make it necessary or recommendable that you make a change. But you also could just change your mind and, like Jane's saying, you know, want to want to change who's getting what, want to change how things are managed. You know, give someone else responsibility that you weren't sure about before. You could just change your mind, exactly.
Jane Dearwester:Yeah, yeah, right, you don't have to. Don't have to write home about it, just say I'm switching it up.
Jordan Bentley:So if you do right, if you do change your mind or if you do have one of these events happen and say you have a will, how would you go about updating that?
Jane Dearwester:Yeah.
Jane Dearwester:So to update a will now a couple of different ways.
Jane Dearwester:If it's a somewhat small change, where you're just changing who you named as the executor and maybe a new child was born into the family or a new family member married into the family, you can do what's called a codicil to the will, which is like an amendment, and you're not redoing the whole will, you're just changing a few items and so when you come in and meet with us, we're going to be able to recommend to you whether it's appropriate for us to do a codicil to change whatever designation, or is it better to just revoke your old will and do a new one?
Jane Dearwester:In other words, if enough has changed or if you're really changing the disposition and tone of the will you did last time, it might be better and cleaner to do an entirely new will. But for most minor changes, like changing again executors or adding a person in or subtracting a person out who is deceased, you can just do a codicil, which is a minimal fee. It's not like doing the will all over again, but it's a way to just make some kind of basic amendments. And no, you can always again revoke your old will and do a new one at any time no-transcript.
Jordan Bentley:I think it's really important. I see this all the time. People will bring in wills that are scribbled all over names, crossed out names, added initials and signatures and random corners. You cannot make handwritten changes to your typed up will and have that be valid. You definitely want to either do a codicil or revoke it, and people will do it all the time. Well, I crossed them out because they're dead and I added this name to replace them. We can do that. It just needs to be done the right way, and that's with a codicil or with a new will.
Jane Dearwester:That is a great point, Jordan, and something I bring up with people. If they want to DIY a change to their existing will, the only thing that someone could truly do themselves is tear it up.
Jane Dearwester:That revokes the will. So if you destroy the original, if you're like I don't want my brother to get everything, or I just got divorced, I don't want anything to go to my ex-spouse or my soon-to-be ex-spouse, tear it up, destroy it. That does revoke the will. So that's the only DIY anybody should be trying. Jordan's exactly right. If you're just writing on it and scribbling notes, that's just going to cause problems in litigation.
Jordan Bentley:It can be helpful if you're bringing that to an attorney, if you're coming in and talking to me about it, I want to see your notes and see the changes you'd like to make. But that's a starting point. That's not the end goal. The end goal is to do a codicil or a new will. You can also, similarly to doing a codicil, you can also you know if you have a trust, if that's something that you've set up for, whether it was a Medicaid asset protection trust, if you have a trust, as long as it's a revocable trust, you can amend that.
Jane Dearwester:Yes, again, pretty quick and easy. Just let us know what you want to change and trust that's, I think, kind of the beauty and the power and the value of having a trust is they are really easy to change. You don't have to start all over from scratch. You're just saying I'm going to change this or I want to do this. And I think something else to remember with trust and something that comes up in our annual reviews quite often make sure you fund your trust.
Jane Dearwester:Don't go through all the time, energy and expense of setting up a trust and then not putting any of your assets in it.
Jane Dearwester:We try to go through this and explain to people, but I don't know if you've seen it, jordan, but I see it a lot on especially the year one annual reviews.
Jane Dearwester:We start going over the trust and we ask questions oh, have you fully funded it? And the client will kind of look at us sometimes and I can tell that the answer is no, because it can somewhat be overwhelming when you're putting all your documents together and you know, a lot of times we have the best intentions to go through and and put the property in the trust, but we don't actually do it. So it can be very um um revealing when we get to that one year point and realize, oh, I did set up my trust but I haven't changed any of my account designations. Hopefully we'll catch the deed for you as far as putting real property in North Carolina into your trust. But what if you have property out of state? You need to get an attorney in South Carolina or Tennessee or California to draft a deed and make sure you get your real property into the trust so that it's protected.
Jordan Bentley:Right. And then you know if you do have things in the trust you know and you want them, you want to change who's getting them, who those beneficiaries are. Maybe you put you know you chose someone to serve as successor trustee after you and you've changed your mind, or you no longer think that person is willing or capable of doing it, or you just think someone else is a better choice. Now unmarried since you set up your trust, and then you know you really trust your new spouse. You know it could be any reason that you want to make a change. You just do that with a trust amendment and you know we can reword a certain paragraph. You know, like I said, change the successor trustee, change beneficiaries, change the distribution, who's getting what. You can modify any of those things and a will and a trust right aren't filed anywhere, not when they're drafted, not when you're hanging on to them. A will gets filed to open up your state and a trust would never get filed with the courthouse. So you know you have those documents, you can amend them and then you know hang on to them and there's no court process, there's no legal step in terms of modifying or amending those things Now with powers of attorney, right, you might want to change who you've given agency, who you've given authority to act for you, and of attorney, right, you might want to change who you've given agency you've given authority to act for you, and you can certainly do that.
Jordan Bentley:But an important step that we have to take with the general durable power of attorney is those are, you know, recorded oftentimes in the county where you're living. We would need to revoke your previous power of attorney and make sure we do that revocation in the county where it was originally filed. And then your new one will say also that you know it revokes any previous ones, but we want to make sure we revoke that. So if anyone in that county tries to use your power of attorney maybe they're trying to sell a property you know in your name or something like that right, we want people to. When they look up the power of attorney and they go on you know Henderson County registered deeds and they see the power of attorney we want them to also see right after it that there's a revocation.
Jordan Bentley:So that's no good. That's kind of how you keep track of whether your power of attorney has been revoked or not Very important because if you do you know, change who's your agent. If you do revoke that, you probably have a good reason. You probably want to make sure that that person isn't still acting. So you're going to revoke it and we're going to send them notice saying hey, you know, you're no longer my agent, don't not allowed to do that anymore. I'm taking back that authority. Change your mind on a power of attorney too. There's just some more formal steps to go ahead and make that complete.
Jane Dearwester:Yeah, I've got a litigation case over here in Transylvania County where a son fraudulently put together a power of attorney and just let dad see and sign the last page. So dad thought he was signing a limited power of attorney for his son to be able to just do very limited thing to sell one piece of property. But what the document actually said is that son could do everything and anything for dad and, as you can imagine, it did not end well. He cleaned out all of our client's bank accounts and so our client on his own actually before he came in immediately did a revocation and recorded it so that bad son could no longer act on his behalf. So it was a very scary situation and we're caught up in litigation on that matter now.
Jane Dearwester:And if you don't record your power of attorney, some people don't want it recorded, for whatever reason personal preference Again if you want to revoke it, you can destroy it. You can rip it in half, just like the will. You can physically destroy it and say, nope, that one's no longer valid, but that will only revoke it if it has not been recorded, which again we recommend. And most people do record them really for convenience and it's just easy to validate when it's a public record, like that.
Jordan Bentley:And I hinted at it.
Jordan Bentley:But you just again want to say you know, when you do change these things, if you have someone who is acting as you know, thinks they're going to be acting as trustee of a trust that you've set up, or someone who thinks you know they're your executor, or someone who you've given agency to act as your power of attorney, if you change your mind, if you change who those people are which you absolutely can and if you do it the right way you also probably want to tell them you know, hey, I've removed you as my fiduciary, I no longer want you acting on my behalf.
Jordan Bentley:That's very important for a power of attorney in terms of liability and you being able to prove that. They knew they weren't anymore. But even with things like a trust or changing your executor or changing your beneficiaries who are going to get stuff, you know it's a good idea to keep those people in the loop and let them know what to expect and what to plan for. You know, and it also protects you and lets everyone know that you've given them notice that you no longer have them in that position.
Jane Dearwester:Yeah, especially with wills, when you change the disposition of your beneficiaries like who's getting your stuff? Again a litigation example. I have a case where there are five children and mom's original will left everything between the five children. And at the end of her life she got ill and our client took care of her solely so she could stay in her home and didn't have to go to a facility. And so mom ended up changing her will, leaving everything to daughter number one. And guess what happened? Brother and the other sisters sued our client and challenged the will, saying oh, there's no way mom wanted to do this, but she didn't tell anyone, she didn't make it public, kept it kind of you know, close to the chest, and what it's ended up in is some really contentious litigation between the siblings.
Jordan Bentley:Right. So she, she, she took her daughter to care of her. You know she's returning the favor and making sure that she's, you know, rewarded or provided for. Now that she didn't tell anybody else. So it's her word against theirs that you don't want to. You know, maybe you want to put them in a good position and leave more stuff to them, but if you don't tell everybody else that was your plan, then yeah, maybe people are going to disagree and challenge that, and so you definitely want to keep everybody in the loop.
Jane Dearwester:It's your, you know, it's your estate plan, it's your intentions, your desires, but you might want to communicate those with your loved ones, the people in your family, so that everyone's on the same page. It helps, all of that helps.
Jordan Bentley:Communication is key always. Well, especially when you're and that's what we're talking about today is changing or updating documents. Um, especially, you know, when you're setting something up in the first place, you might want to let someone know. Hey, you know, would you be comfortable serving as my power of attorney? You know, I think I'm going to think I'm going to have you as trustee of this trust. You know, are you going to be able to do that? Are you willing and capable? And, and you know, and with the power of attorney, you need to let them know and give them notice that they can't act for you anymore.
Jane Dearwester:And a good example of what can go wrong. There is a agent under a power of attorney, an executor in a will, a trustee in a trust. They cannot be forced to serve that role. They can resign. So if you don't ask them and then when it comes to the point where you need their help and they're like, no, I'm not going to do this, then your planning was all for naught because the person you picked didn't know, doesn't want to do it and can't be forced to do it. It kind of like collapses all of your hard work and your plan if you don't have somebody on board that knows what's going on and wants to do it and is willing to do it.
Jordan Bentley:Willing, capable and trustworthy. I think those are the most important things for a fiduciary. So the person you've chosen to do those things, you know is no longer willing. Or maybe you never talked to them and they're not willing, or you don't think they're capable. Um, you know, or you, for some reason, things have changed and you don't trust them. Or, like Jane said, maybe you just changed your mind.
Jordan Bentley:Um, you know, if you want to update any of those documents, if you want to have one of our attorneys review them, um, you know, give you peace of mind that this is still doing what you want. Or you know you should make this change because this change happened in your life. You know, that's a very common conversation that we have. We encourage everyone who makes an appointment or comes into one of our offices to bring all those documents with them and then to let us know what changes have happened. You know, if you drafted that well, in 2018, I'm going to ask you what's changed since then, and then we can figure out if updating your documents is the right choice and then how to do it and make sure it's done the right way.
Jane Dearwester:Yeah, absolutely Well. Thank you for joining me here today, and if any of y'all have any questions about updating your estate planning docs, please give us a call. We have offices in Hendersonville, shelby and Charlotte and you can find us online. There's tons of information online about all of this information, videos, blogs, all kinds of stuff and that's wwwmcelderlawcom. Thank you, yeah, have a great day.
Jordan Bentley:You as well.