By WILLIAM B. HOWELL
The Will is only effective to distribute your assets after you have passed away and after the probate process has been completed in Chancery Court. If you should become incapacitated during your lifetime as a result of a stroke or dementia, then your Will cannot help you, because a Will is only for death planning. You would need something besides the Will to give authority to someone to act for you during your lifetime.
For many years, people used the combination of a Will for death planning and a durable power of attorney for giving authority to someone in case the event of incapacity. For a long time this was acceptable. Today it may work, or it may not work. The problem is that in the last several years, many of the commercial entities with which we all do business (banks and others) have elected not to honor powers of attorney. A power of attorney is not legally required to be honored by anyone. It is purely voluntary. Today, many (but not all) financial institutions have elected not to honor powers of attorney because of the possibility of honoring an improper or revoked document without notice.
For many families there is also the issue of the involvement of the legal system after you have passed away, which is required when using a Will, but is not required when using a Living Trust. The statutorily required delays using a Will make the probate process somewhat lengthy. Using a properly funded Living Trust, no probate is required and there is little if any legal involvement after a person passes away. This also preserves your family’s privacy, because your probate file at the Chancery Clerk’s office is entirely open to the public.
With a Living Trust there is no need for a power of attorney because, if you should become incapacitated, then the person you’ve named in your Trust will automatically take over for you and manage your affairs without the necessity of having a power of attorney or having any court involvement. At such time as you pass away, your assets will be distributed through your Living Trust just the way you have said you wanted it done, without the necessity of probate through the court. And, of course, this distribution through your Living Trust is private.
So why doesn’t everybody have a Living Trust? The reasons are twofold: first, many people don’t know about a Living Trust, or if they have heard about it they make the incorrect assumption that you have to be wealthy to need a Living Trust. Nothing could be farther from the truth. In fact, a modest estate will suffer a larger shrinkage from a percentage standpoint through the cost of administration than will a larger estate. The second reason that Living Trusts are not for everyone is the fact that a Living Trust estate plan costs more to prepare than just a Will, but the savings by avoiding court are much larger. When done properly, a Living Trust estate plan includes a collection of anywhere from 10 to 25 different documents. This is not really a “do-it- yourself” activity. A Living Trust does not require any additional tax returns, nor any annual maintenance or expense.
The sad truth is that very few people actually have an estate plan of any kind, whether centered on a Will or a Living Trust. One survey found that over 70% of American people do not have any estate plan. Of the persons who do planning today, they are roughly evenly divided between the use of Will and the use of a Living Trust. And that’s only for that small minority of people who actually plan. Your family should have the good fortune to be a part of that group.
Please, take the time to put in place a good plan for your estate, regardless of what documents you choose to use. It is not just for when you pass away, it is also for while you are living. It will give you great peace of mind. And it is truly a loving thing to do for your family. They will thank you for it.
William B. Howell is a member of the National Academy of Elder Law Attorneys and practices law in Ridgeland.