List of Articles


By:  Sandra L. Clapp, Esq.


I am often asked how to prevent problems after death.  While an advisor can never guarantee disputes or issues won’t arise, during my almost twenty years of legal practice I have noticed recognizable patters emerge in the difficult or contested cases.  This article is the first of a two part series to help identify the main mistakes you can easily avoid to increase the chances your affairs will be handled appropriately and as intended.  Counting backward to number one (or the most important mistake to avoid), this list will provide guidance on steps you can take to avoid dispute, cost, delay and hard feelings during your lifetime or upon your death.  Without further delay – Mistakes 10 through 6:

  1. Being Naïve – An old saying goes “hope for the best and plan for the worst.”  Many individuals believe their children or heirs will not fight.  What is not considered in this conclusion is that many times the parent or individual is the stabilizing or connecting force in a relationship.  When that force is gone, the relationship may evolve to one that is different than prior to a death or incapacity.  When planning for money or health care decisions, assume there will be dispute and plan accordingly.  Accept the propensity and characteristics of your loved ones – they won’t change when you die or need help.  With any luck, this was an over-cautious approach.

  2. Failing to Address a Change in Circumstances – Most plans are based upon assumptions regarding finances, asset growth, health of persons identified to assist you, and composition of the family.  When a change of circumstances occurs, such as a significant medical illness, divorce, or loss of wealth upon which the plan is based, the new intent needs to be updated and set forth in a legal form.  Failing to consider the new circumstances can wreck havoc in the lives of the survivors or the person charged with administering your affairs.

  3. Procrastination – Along the same lines as failing to address changes, the procrastinator may start the planning process and never fully complete it.  The decisions to be made are not easy, but procrastinating in making a decision will not resolve these same issues if an unexpected death or illness occurs.  Most estate planning documents can be modified over time.  It is best to have less than “perfect” documents in effect rather than having no documents or only a partially implemented plan.  In many situations there is not a “right” answer – just pick the best answer under the circumstances and know that it can be changed.

  4. Lack of Liquidity – Life insurance can be a luxury for many families, but the lack of available cash for the survivors or the person administering the estate can have a devastating impact on preserving the estate.  Many individuals assume their business or real property can be sold to generate cash for the heirs.  As we have learned over the last two years, many assets cannot be sold quickly and may be sold at a value significantly below what is anticipated.  A buyer in a distress sale (such as where the estate needs to liquidate quickly) may take advantage of the situation to negotiate a much lower purchase price.  The lack of available cash (from life insurance or savings) may also result in foreclosure or loss of assets if the associated debts or expenses cannot be paid.

  5. Forgetting to Consider the New Spouse or Child – Marriage is a wonderful event, but can create many problems with an existing estate plan.  The failure to include a new spouse (or child) will likely result in the new spouse (or child) receiving an “intestate” share of the estate.  This amount of property or assets may be much greater than you intend or may be inadequate to provide for your loved one.  When having a new child or entering a new relationship, consider the long-term impact on your overall plan.

In the next article we will continue the countdown of the remaining 5 most important mistakes you can avoid.  This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes.  Because of the complexity of the estate tax laws, please consult with your attorney for proper guidance.

Continue to Part 2Go to Part 2
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