Home > Estate Planning > The Missing Element of Your Estate Plan

Original post from the HOOK Law Center:

by Stephan J. Lipskis, Esq.

Often our attorneys are called to help families administer the estates of individuals who did not communicate their plans or desires clearly when they were able. This occurs even for comprehensive estate plans that we have drafted for clients. These estates are often difficult to administer because obtaining the necessary information to administer the estate can be extremely frustrating and time- consuming. Regardless of the sophistication of your estate plan, there is one thing that needs to be a part of it: communication.

Varying degrees of communication can allow your estate plan to be implemented to a greater degree of success and even help make your family closer. In this article, I will discuss some of the benefits and drawbacks from different levels of communication.

The lowest level of communication is “No Communication” or almost no communication. Most of us realize that failing to communicate the plans for their assets is undesirable, but many fall into this category for one of the following reasons or excuses: “I am too busy to deal with this right now; I don’t want to address (or am uncomfortable with) that conversation; I am incapable of communicating at this time; and I’ll be gone anyway.” These reasons for not communicating a plan cause a great deal of confusion regardless of whether an estate plan is in place. Family members are left wondering where to begin with administering the estate. Simple questions such as whether there is a Will or Trust may be unknown, and there may not be a clear place to search for those documents. Even worse, medical decisions may be made by someone other than the individual’s preferred choice. The short answer to the above excuses is that you will be putting a huge financial and emotional burden on your loved ones that could have been at least partially avoided. The only upside to this lack of communication is that the incapacitated or deceased individual does not have to address sensitive issues with family members. Conversely, if the issues are truly that sensitive, they should be addressed in order to prevent disputes from occurring upon the individual’s incapacity or death. If you have failed to let your family know the who, what, when, where, how,, and why of your plan, it will leave them asking those questions themselves.

The second level of communication, which is slightly better than “No Communication,” is “Moderate Communication.” Generally, this involves communicating that there “is a plan,” or that you have certain wishes to relevant family members without further discussion or elaboration. The family members are not aware of what the specific “plan” is, but they have an idea that a plan is in place. This can cause issues, because the effectiveness of any plan relies on all of the people involved. Furthermore, this prevents family members from acting to improve a plan, because they think a satisfactory one is in place. Simply put, if the family members are completely unaware of the plan provisions, then they are unable to give adequate input. For example, a brother may not want to serve as executor or a grandchild may not need funds for education if other arrangements have been made. Often a spouse or child is not comfortable making end-of-life medical decisions, because they are emotionally unequipped. This type of communication is similar to purchasing insurance and not being aware of what items are actually “covered.” Similar to the coverage in an insurance policy, some planned-for items may be superfluous, and some items you thought were adequately planned for may be points of weakness in the plan.

The third level of communication is “Adequate Communication.” This level of communication involves the relevant players in the plan and makes sure everyone is on board. Furthermore, input from the persons involved is absorbed, and they are somewhat comfortable stepping in during spells of incapacity or upon the death of the planner. The downside of this level of communication is that there will be a learning curve for the person called upon in the event of disability or death, because they generally do not have a good handle on the budget, finances, assets, and other matters of the planner. This level of communication discusses the who, what, when, where, and how of the plan and related assets. By having these questions answered, the family members understand what is going on and where they need to step in. The downside of this level of communication is that it does not provide the insight that is needed for truly complicated situations or any of the added benefits discussed in the next level of planning.

The highest level of communication is “Optimal Communication” which can best be described as ongoing, consistent, and addressing the why of the plan. The why of someone’s estate plan is as unique as they the individual. The particular choices made with regard to medical decisions and distribution of assets relates directly to an individual’s historical, spiritual, charitable, and other beliefs. Communicating the why of a plan allows for passing on personal beliefs and stories, which makes the difficult task of talking about death and incapacity a much more engaging and joyful conversation. Optimal Communication eliminates the steep learning curve which can occur when someone needs to assume oversight of an estate plan unexpectedly, because they are continuously involved in the details of the plan. Furthermore, all relevant parties know why particular decisions have been made and are less likely to contest the plan, if they have been informed of the reasons behind certain choices.

If you are concerned about how to improve the communication of your estate plan, please contact us. Our attorneys frequently assist clients in explaining their documents to family members. A simple meeting is almost always sufficient to move the communication of your estate plan to the “Adequate Communication” level. By ensuring that the necessary parties understand your estate plan, you will avoid confusion and chaos that can frequently lead to problems in the event of an individual’s incapacity or death.