While I typically write about the importance of executing estate planning documents, knowing what to do with them after they are signed is even more important! Estate planning documents should not be considered those you can “set and forget.” They should be revisited regularly, and some documents, such as trusts, even have little use unless they are properly funded during life.
So, what should you do next? Here is a non-exhaustive checklist you can follow to ensure you have taken advantage of all your estate plan has to offer:
- Fund your trusts and update any beneficiary information as recommended by your attorney: First things first, if you have created any trusts make sure you have instructions from your attorney as to what assets he or she recommends be held by the trust and how to transfer them. For example, if you have created a revocable living trust to avoid probate, simply indicating on the trust document what assets are “owned” by the trust is insufficient. The asset title (ownership) needs to be transferred to the trust.
- Advise your Executors, Trustees and Agents that you have appointed them and where your documents are stored: Hopefully your nominated executors, successor trustees and agents under health care proxy and power of attorney have been informed that you have appointed them and have agreed to act in these capacities. Make sure they know what their role is, what your expectations are, and where they can locate the information (and documents) necessary for them to handle your affairs. I recommend providing them with the contact information of your estate planning attorney, accountant and financial advisor(s) and perhaps even copies of the documents you have executed, if appropriate.
If your attorney has retained your original estate planning documents in his or her files, make sure your agent under your health care proxy and your nominated executor/trustee knows how to obtain said original documents, should they be necessary. Many attorneys will require a death certificate to be received before releasing an original last will and testament to anyone but their client.
If you are in possession of your original estate planning documents, I recommend keeping them in a fire-proof safe in your home. While keeping them in a safe deposit box at your local bank may seem logical, this can cause much delay and headache as your executor would first need to obtain authorization from the County Surrogate’s Court to open and search the safe deposit box for your last will and testament after your demise.
It is also prudent to keep digital copies of your estate planning documents, recent bank account statements, doctor’s records and tax returns in an accessible and password protected folder on your computer. Make sure that your trusted agents have this password, or know where the password can be located.
In the event you do not advise your family of your estate plan or they cannot locate your documents and/or contact information for the attorney who prepared your documents, it is possible for your assets to be distributed upon your passing based on New York State intestacy laws (i.e., to your next of kin) and not in accordance with your wishes. This would lead to not only a waste of the time and money you spent to prepare your documents but can also have irreversible consequences as to who receives your assets upon your passing.
- Review and update your estate planning documents at least every 5 to 10 years: The key to a successful estate plan is revisiting your plan to make sure that it continues to comply with your wishes, current law, and to confirm that you have taken the necessary steps to implement your plan. There are a number of life changes that necessitate updating an estate plan. For example, if you have relocated to a new state, been married, divorced or widowed, retired or have started a new job and/or career are all logical and important times to meet with an attorney and review your documents to confirm that no updates are necessary.
Furthermore, New York laws, especially those affecting estate taxes, Medicaid eligibility and the laws surrounding the proper execution and form for a New York power of attorney change regularly. If it has been a number of years since you updated your power of attorney and reviewed the value of your estate, I strongly urge you to do so.
Lastly, if you use different estate planning counsel when you update your documents, I also recommend either obtaining your “old” documents from your prior estate planning counsel, or advising him / her that you have revoked said documents and have executed new ones. Having multiple sets of estate plans with different attorneys can lead to confusion, especially if the updates are not communicated to loved ones and incorrect counsel is contacted after your demise.
In a nutshell, there is much work to be done even after the documents are signed!
