By: Stephen R. Elville, Managing Principal, Elville and Associates, P.C.
You are searching for a client care program (whether you know it or not). Yes, you are. Whether you are consciously aware of this is the purpose of this article. You do want your estate plan – your Last Will and Testament; or your will substitute, your Revocable Living Trust, to work as you intend it to. You want the terms and provisions of those documents – your documents – to accurately reflect your current thinking and address the current circumstances of your life and the lives of your family members; you want your estate plan to be updated in accordance with the latest changes in the laws, including the tax laws; and you want your financial assets – non-retirement assets such as cash in checking, savings, money market accounts, and certificates of deposit, mutual funds, stocks, bonds, real estate, tangible personal property, intangible personal property, business interests such as ownership in corporations or limited liability companies; beneficiary designated assets such as life insurance, annuities, payable on death accounts, transferable on death accounts; and retirement-type assets (also beneficiary designated) IRAs and qualified plans such as 401(k)s, Thrift Savings Plans, 403(b)s, and 457 plans – to either be intentionally controlled by the terms and provisions of your will or trust; or to intentionally not be controlled by those terms and provisions and instead flow in certain other directions – all intentionally. This intentionalism I will call it is the essence of what real estate planning is all about. Everything else concerning the subject of estate planning fades into insignificance by comparison. If you are not extremely intentional in your estate planning (and this includes elder-related planning, special needs planning, and business planning), your planning will possibly collapse. Since we know that no rational person wants his or her estate plan to risk failure, let’s first remove any doubt that an estate plan can easily fail.
Estate plans can collapse or fail for many reasons, but most of us do not consider just how easy it is for this to happen. Before we review several examples, let’s define what estate plan collapse is by first considering what estate planning is. This is challenging because each person’s estate planning goals are different and therefore each person’s definition of estate planning can be different. But for our general purposes here, one general definition of estate planning might be this: estate planning is the process of disposing of my assets, to the persons or organizations of my choice, at the lowest possible cost. Notice with special emphasis the word process. Others might define estate planning as one or more of the following: ensuring that assets never go to my spouse’s potential new spouse; or protecting against the new spousal elective share law; or making sure estate, gift, inheritance, and income taxes are minimized or eliminated; or protecting retirement plan asset shares and minimizing the impact of the new SECURE Act; protecting the shares of beneficiaries from the claims of creditors; planning successfully for a child or loved one with special needs; planning for a spouse with dementia; ensuring the care, safety, and well-being of parents or grandchildren; and many more. With these ideas in mind and with the knowledge that each individual will have their own definition of what estate planning is and what it means to them, let us define what estate planning carelessness is, as including but not limited to the following examples: lack of a partnership-type relationship with your estate planning attorney; estate planning equals a one-time transaction; lack of a defined process; focus of estate planning on “documents”; no follow-
up or on-going maintenance of the estate plan; no financial advisory or tax professional team; no collaboration of the advisory team; no consideration of changes in the laws; no client legal education; no consideration of unforeseen contingencies; incorrect or non-existent beneficiary designations; no proper asset alignment; lack of understanding of effects of beneficiary designating non-retirement assets; poor selection of fiduciaries; no education of fiduciaries; poor organization (and many more).
Having made outlandish assumptions here about what you intuitively want, and having gone to great lengths to show that estate planning must be carefully and consistently orchestrated in order to ultimately be successful, as is further illustrated in my upcoming book, let us now get to the main thrust of this article – how to be intentional in your estate planning. More specifically, how to practice intentionalism in your estate planning.
We begin by recognizing something very fundamental: being intentional isn’t easy – and we assume that by knowing how to do a thing, we can move forward in a scientific way towards its accomplishment – an estate plan that works as you intend it to. Here is the definition of “intentional”, as defined in Websters Online Dictionary, April 2020: done by intention or design; having external reference. Synonyms include conscious, deliberate, intended, knowing, and purposeful. Antonyms include unintentional, and nondeliberate. Applying this literally then, an intentional estate plan is one that is designed and done with conscious and deliberate intention, with reference to an external process. With this said, can you imagine having an unintentional estate plan? Yet this is what most people unknowingly do, and what they unknowingly have. Understanding the full import of this last sentence is key to overcoming the enormous obstacles to successful estate planning.
In estate planning, being intentional means many things then, among them these: knowing what you want and what your goals are; selecting the correct estate planning attorney; engaging in a partnership-type relationship with your estate planning attorney; expecting and participating in an estate planning process that includes client education as part of that process; aligning your assets with your estate plan in coordination with your estate planning attorney and financial advisory team; committing to maintaining and updating your estate planning on a systematic basis over the years; and participating in a client care program to encourage and accomplish continuing client legal education and updating, including ongoing adjustments to documents and the alignment of assets.
Because the first several intentionality requirements listed here are beyond the scope of this article, we will focus only on the last two – one of which is completely within your control, and the other being almost completely within your control. The first, committing to maintaining and updating your estate planning on a systematic basis over the years to come, is completely within your control. Because of your desire to develop a fully functional estate plan, your recognition of the complexities and considerations involved over a lifetime, and your instinctive understanding of the kind of methodical approach that will be required to overcome the everyday noise and life inertia that keeps so many people from success, you mentally commit that incapacity and death planning (the primary elements of estate planning) will become a
routine part of your life, and as such it will be scheduled on your calendar. You can do this on your own, and you may have already made the necessary commitment right now during your reading of these words. The second, participating in a client care program to encourage and accomplish continuing client legal education and updating, including ongoing adjustments to the alignment of assets, is almost completely within your control, but ultimately is not. Here’s why. Try as they may (and usually “trying” is the exception), hundreds of estate planning law firms across the United States fail to implement a client care program, otherwise known as a client maintenance and updating program. By failing to do this, these law firms ensure the potential collapse of at least some of their clients’ estate plans at best, and of a majority of their clients’ estate plans at worst. This is quite a statement, and quite an indictment I know. But consider this – how many people in the United States actually have an estate plan? We know the answer – only a minority of the population. Going one step further, how many people meet with an attorney to sign a will or revocable trust, then never hear from that attorney again, or in all fairness to the attorney or law firm, never contact the attorney again? We don’t know the exact number(s) of course, but we intuitively know the answer. Further, consider this – how many people today sign wills or trusts without an attorney, then never follow up or revisit their planning, and never consider the alignment of their assets? We know the sad answer to this too.
This leads us to an obvious and final dilemma. If you are a conscientious person who is willing to commit to estate planning that works as you intend it to, then you must find an estate planning attorney or estate planning law firm who understands your commitment and agrees to commit to you by providing you with the opportunity to achieve success by participating in a comprehensive client care program, one that ensures victory in your estate planning through continuous, repetitious maintenance and updating of documents and the alignment of assets, client continuing education, fiduciary education, inclusive family participation, educational and social events, collaboration with financial and tax advisors, and exclusive ancillary services – again, all for the purpose of cultivating and encouraging real success in estate planning. By having read this article, or perhaps having been led to read it, we know you have the spark of commitment – you have what it takes. You know you are the hero of the story – your own story, and you are now setting out on your estate planning journey to find an estate planning attorney/estate planning law firm worthy of you. You intuitively know you must make this journey. And now you know what you must do and what you must look for. The search begins.