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I Didn’t Know It Was This Complicated To Die

My 91-year-old client said this as we were reviewing her estate planning after her husband died and were discussing some options that were more involved than their prior plan. I’ve been thinking about this and understand what she said, although perhaps it is more complicated because our lives are more complicated. In good ways, but still, complicated.

I have been working with Mary and her husband John for a long time. In 1993 I did their estate planning, and at that time they each had four basic documents: Last Will and Testament, Durable Power of Attorney, Living Will, and Health Care Power of Attorney. I reviewed these papers again in 2019 with them and we made a few simple updates. But when John died in late 2020 and I reviewed her documents and financial situation I realized that a Trust would make sense. I never do this lightly, especially with someone of Mary’s age and situation, but like so many of us today, things were more complicated. Her son, who is her attorney in fact and would be the executor, was still living in Cleveland but planned to move to California in a year when he retired. Although she had a small estate, she had 7 heirs located in different parts of the country. Like it or not, this would be an expensive and cumbersome proceeding in probate court. If her son were out of state, he would have to post a bond and although there was an alternate, he was her preference. Even more cumbersome and costly were all the heirs.

In probate court, all heirs must get a copy of the Will and then either attend a hearing on the Will, or as is often the case, waive the hearing. This same process of notification and waivers would be done when the Inventory was prepared and eventually the final account filed. And if any of the seven predeceased, the current Will said that that person’s share would pass to his or her children, which could add more notices, and to be blunt, more math. The estate would be divided seven ways and one-seventh might be divided by thirds.

Mary, with the help of her son, decided to do a Trust. There would be more papers to sign this time than in 1993. A trust is longer and more involved because it has to be funded. In other words, her assets needed to transfer into the Trust. I knew this would be a challenge for her which is why I talked to her son first. I have known the family a long time and wanted Mary and her son to understand why I thought this plan was best even though it had more moving pieces (so to speak), but the final decision was up to them.

After lots of emails and phone calls and meetings (and a great little lunch together) Mary signed the papers in December of last year. That was when she said, "I didn’t know it was this complicated to die". I understood what she was saying and agreed with her. But once those papers were signed and assets transferred, it was going to be far less complicated to take care of Mary if she became ill and much easier to see to her wishes upon her decease.

Life is more complicated – more types of accounts, more blended families, more people living in different parts of the country (and world) - but I think we would agree it is worth all that complication. And worth taking some time to make our estate planning match this new “complicated” life.

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