Twelve Uncomfortable Yet Necessary Questions Regarding Estate Planning

Estate planning is probably not your idea of fun. Among other things, it forces us to admit that we may become incapacitated, to decide who gets what after we pass away, and to make provisions for end-of-life care. In South Florida, to establish your wishes legally and in writing, a West Palm Beach estate planning attorney will need to ask some very tough and personal questions. Some of them might make you quite uncomfortable. Thinking about these questions ahead of time, however, can help you prepare for a consultation regarding your estate plan.

1. “If both parents die unexpectedly, who raises the children?”

Don’t wait until your children are adults to start planning your estate. If you fail to name a guardian, and if both parents pass away unexpectedly, then a judge will name a guardian for you based on what that judge determines is the best interests of your child. Unless you believe that a complete stranger knows better than you do what is best for your children, it’s a good idea to see an estate planning attorney now. No one knows what tomorrow has in store.

2. “What if your family perishes together in an accident or a natural disaster?”

Even if you are committed to the idea that your parents, spouse, siblings, or children will inherit your assets and property, you have to face the remote possibility that an accident or a natural disaster could take all of you together at once. If you don’t have a close friend or a charity that you can name as a secondary beneficiary, it can be a barrier to completing an estate plan, and you’ll need to arrive at some kind of determination.

3. “Are there any other relatives that you haven’t mentioned?”

Plenty of people are able to keep lifelong secrets even from those who are close to them. If it turns out after your father dies that he had another family you never knew about, or if you never dreamed your grandmother was married three times until you met her first two husbands at the funeral, you are not alone. If your estate planning attorney asks you about “other relatives you haven’t yet mentioned,” it’s because many people keep such secrets, and your attorney needs to know. If you don’t disclose these kinds of facts to your estate planning attorney, someone could conceivably show up with a legal claim after your death and put your estate plan in jeopardy.

4. “Are there any other people who might have a legal claim on your estate?”

Intimate companions outside of marriage have sued for more than “palimony.” In fact, they’ve sued plenty of estates in Florida. Without regard to your marital status, your estate planning lawyer will probably ask if you are or have been in a relationship such as a civil union, a domestic partnership, or any personal relationship that may encumber you legally. You may not even be aware of potential legal obligations that you need to know about. An estate planning attorney can’t provide the legal help you may need unless he or she has the full picture, and a legal dispute after your death could consume your estate with legal fees.

5. “What are your wishes regarding nutrition, hydration, and life support?”

In Florida, your estate planner will ask you to sign a health care directive about withholding nutrition and hydration. We all have our own convictions regarding exactly when life ends or should end. Share your wishes regarding nutrition, hydration, and life support with your estate planning attorney to make sure those wishes are carried out.

6. “Do you have any ‘frozen’ genetic material?”

Even if your estate planning attorney doesn’t ask, disclose any frozen eggs, sperm, or fertilized embryos that you may have preserved. Do you want to provide for beneficiaries born after you die? Science is pushing the boundaries, even for estate planning, so if you have any genetic material stored, expect to be asked some tough questions by your estate planner.

7. “Are you transgender?”

If you are asked this question, it’s not because your attorney is being nosy, inappropriate, or rude. It’s because gender transition has legal implications that need to be considered for estate planning, and even if your attorney does not ask, he or she nevertheless needs to know. It is imperative that your gender identification in all of your legal documents expresses the way you now identify yourself. If there are any mismatches, it may be necessary to apply for new documents like your birth certificate, driver’s license, or passport.

8. “Who will care for your pets?”

You may or may not need to set up a pet trust, but you will probably want to set aside some funds and have someone you trust to care for your pets. Whether it’s a goldfish or a stable of racehorses, your estate planner will have questions and will be able to help you find the right answers to caring for your pets. A number of organizations care for the pets of deceased pet owners in South Florida, so if it’s necessary, a West Palm Beach estate planning attorney can put you in touch with the right people.

9. “Have you made large donations or gifts?”

Most gifts above $13,000 must be reported to the Internal Revenue Service. The gift may not be taxable, but it must be reported. A good estate planning attorney can help you get gifts made in the past reported properly and may also be able to help you mitigate any tax consequences.

10. “Did you sign a prenuptial, postnuptial, or community property agreement?”

If you signed any kind of legal document that may have seemed unimportant years or even decades ago, it’s possible that someone could dig it up after your death and put your estate plans in jeopardy. During the estate planning process, it is imperative to disclose, as far as possible, any legal document that you have ever signed. If a document needs to be modified or terminated, your estate planner can help.

11. “What are your online user names and passwords?”

Many of us have something online that may need to be accessed or preserved in the event of incapacitation or death. Your estate planner can help you decide what is important, what isn’t, and who should have access. Digital property law is a new and rapidly developing field, and technology keeps advancing, so you and your estate planning attorney will need to explore your options together carefully.

12. “Do you suffer from any severe or chronic health condition?”

Again, this isn’t a nosy question. The best estate planning takes into account actuarial life expectancies, but if you have health issues that could impact those life expectancies, your estate plan will need to be modified accordingly. Don’t hesitate to speak up, ask questions, express your concerns, and disclose anything that you think may be important to the estate planning process. You might even want to make a list of disclosures and questions for your first estate planning consultation or as you go along. In effective estate planning, the details can make all the difference.