By William B. Howell


Here we are in a brand new year filled with promise and opportunity. In order to realize the promise and take advantage of the opportunity, you have to do something. Neither of these comes to you automatically. Will you just continue to leave your family at risk because you find it more convenient to procrastinate rather than face the reality that something may happen to you in this New Year? What if it did and you had continued to procrastinate? What then?

Your family will likely have to spend a significant sum of money going to court to get permission to deal with your assets and to take care of you (and them) if you are still alive but incapable of caring for yourself and handling your own business dealings. But what if you are not living? Court will again be necessary (with all its expense and delay) in order to give authority over your assets to your administrator who will then pay your bills and distribute your assets according to the laws of the state of Mississippi—probably not the way you would want it done. Have a spouse and children? The state considers the spouse as just another child, so he or she will get a child’s portion of your assets. And if one or more of your children are minors or disabled, then their share will have to be administered separately, resulting in even more expense and delay.

While on the subject of minor children, if there is no surviving parent, then the court will appoint someone to care for the children until grown. It may well not be the person you would have chosen, but you had the chance to name that person and instead you procrastinated. By that time you are dead and can do nothing to correct this very large mistake. And let me give you a tip: it is often wise to have one person (or couple) rear your children and someone else to manage the money for them. Separating these responsibilities can be a very wise thing to do. You may have one person who is perfect to raise your children, but has no “money sense”, while your choice to manage their money would be the last person you would want to participate in instilling values and love in your children. Incidentally, these issues apply to a disabled adult child as well. They need special planning also.

As you can see from the above, planning for the future does not involve just “death planning.” It is also crucial to plan for what would happen if you did not die, but could not act for yourself for whatever reason. Give your family the tools to do the job. Obviously, a Will is only for death. Many people have a Power of Attorney (for business, not for healthcare) that they are relying upon. Twenty years ago that may have been satisfactory. But now, powers of attorney are often refused—particularly by financial institutions like banks. So, what will solve that problem?

People today are turning to a Living Trust to avoid complications in the event of incapacity or death, to give the family the needed authority, and to do so without ever going to court with all its delay and expense. Also, court proceedings of this sort are all public, as are the records at the courthouse. So there goes the privacy of anyone who goes through these procedures. On the other hand, a Living Trust is private so that there is no public record as to what you had, what you owed and who got what after you are gone. I have an attitude: I have nothing to hide, but my business is my business and not anyone else’s. I want my family’s privacy preserved.

As to seeing that your healthcare wishes are carried out your way and not just left up to chance, particularly what treatment you want at the end of your life, you need special documents: an Advance Health Care Directive (which includes a healthcare power of attorney and a very much improved living will), and you need written provisions to allow your family to have access to your medical information if you are unable to speak for yourself.

You have a whole new year ahead of you. Take care of your family. You have been meaning to get an estate plan for years now. Stop procrastinating and just do it. You’ll be glad you did, and your family will thank you for it.