Estate Planning – “What Good Is Education Without Organization?”
By: Stephen R. Elville, J.D, LL.M., Principal and Lead Attorney – Elville and Associates, P.C.
OK, it’s time to “get real” as we used to say in the seventies. A wonderful financial advisor friend of mine, a Certified Financial Planner actually, once said to me over dinner, “Steve, you do a stellar job of educating clients and their families about estate planning, elder law, and special needs planning, but what about organization?” The dinner had been going extremely well up to that point, and I had just reached for another shrimp cocktail when he dropped this verbal bomb. Unbeknownst to him, I temporarily froze, and my mind went blank like a computer screen that has just lost power. Feeling the need to keep my composure and continue impressing my friend with my knowledge and intellectual prowess, I quickly realized that I had no good answer. After stumbling around a bit, I mumbled something about estate planning binders, thumb drives, and rooms full of file cabinets. He smiled gently and calmly said something I will never forget: “What good is education without organization?” To this day, based on my experiences with thousands of clients, I believe he was absolutely right. Organization is one of the key elements of estate planning.
When the COVID-19 health disaster began, and continuing for many weeks thereafter, our government, and most individuals and families, were caught unprepared. Vital supplies, supply lines, contingency plans, services, and more were either in a state of shortage or non-existence, interrupted, disorganized, or understaffed. The negative results and effects of our national and individual unpreparedness need no explanation here – they were and are tragic and are known to everyone, never to be forgotten during our lifetimes and for decades and even centuries to come. A general lack of preparedness and organization likely caused the illness or death of many people, proving that our country and our citizens largely disbelieved that such a catastrophe could occur.
I believe that the cataclysmic COVID-19 pandemic is a metaphor for life and its relationship to estate planning. If the health crisis disaster suggests anything to or about the social order, and if events over the past 100 years are indicative of anything, we must collectively realize that anything is possible and that our modern technology-driven society is not insulated from the effects of nature. We must accept that life represents a series of risks and mitigate those risks through preparedness and organization. In estate planning, preparedness means planning for life (incapacity planning with powers of attorney and advance medical directives) and planning for your legacy (death planning with wills or trusts), along with collaborative financial and tax planning with financial advisors and CPAs. This estate planning, financial planning, and tax planning should be coupled with on-going lifetime continuing education to ensure that your planning ultimately works as you intend it to, and that it does not fail. But this comprehensive planning is not enough without intentional and purposeful organization. We could even go as far as saying that this organization must be extreme.
Along these lines, consider two scenarios – one during your lifetime, and one after your death. Let us talk about the lifetime example first, and let’s assume you’ve already taken care of the preparedness aspect – you already have a will or trust, along with powers of attorney and an advance medical directive, and you’ve worked with your collaborative team of advisors to ensure that all assets are properly aligned with your plan, and you’ve continued to educate yourself and your fiduciaries about your planning and their responsibilities relating thereto. Now imagine that you’ve become disabled and cannot manage your own affairs. Where are your financial powers of attorney and advance medical directive located? Where have you stored them? Do you know? Does your agent know where the original documents are? Can they access them? If you’ve utilized a safe deposit box arrangement, does your agent have access to that safe deposit box? If you’ve chosen to utilize a home safe or other similar arrangement, can the agent get access? Where are the keys, codes, or combinations kept? Are your documents stored digitally? If so, where are they and how can they be accessed? Have you authorized your agent(s) to manage your digital assets? Have you organized a digital asset spreadsheet? Do you have a digital archive, and if so, is your agent aware of this? How will your agents find your passwords? Have you provided a set of instructions for your agent about how to manage your affairs during your lifetime – a lifetime memorandum of intent? Are there any persons who are dependent on you, and if so, have you provided instructions to your agent outlining about how they are to provide for those persons? This list is not exclusive, and there may be many other considerations depending on your family’s unique circumstances.
Turning now to the death example, many of the same above-mentioned questions and examples apply. Does your personal representative or trustee know where your will or trust is located? Have you educated them about the nature of these documents and how to access them? If you have a will, is it registered? Have you carefully identified your assets and provided a spreadsheet or list for easy review, including digital assets? Have you clarified how the assets are titled, and how those assets will flow at your death in relationship to your will or trust? Have you provided a letter of wishes or memorandum of intent for your trustee? Have you prepared written instructions for your fiduciaries giving them guidance about what next steps they should take after your death, how to administer your estate or trust, and who your attorneys, CPAs, and financial advisors are?
It has been said that there is an opportunity or a benefit in every adversity. One such opportunity or benefit stemming from recent world events is that we all can consider and learn from my friend’s gentle but deadly serious admonition: preparedness, continuing education, financial, and tax literacy are vital and necessary components of personal success, including comprehensive estate planning – but without organization – the systematic and logical organization of documents, assets, and systems, along with access plans, our planning house, set on an otherwise firm foundation, can crack and come crumbling down at some unexpected time when it is needed most. As I conclude this article, I can say now that I know the answer to my friend’s question of so long ago, “what good is education (in estate planning) without organization?” The answer is: it is stupendous, vital, fundamental, and critical to success; but its value becomes limited where no extreme organization exists, due to the state of our lives and world, and the nature of estate planning when it is needed during a time of incapacity or at death. Therefore, after a lifetime as an estate planning attorney, I have concluded that education and organization are synonymous with success in estate, elder law, and special needs planning. Isn’t it time to get organized?
