Why Planning Ahead Matters

Why Planning Ahead Matters


Many people are good at planning most aspects of their lives. They plan where to live, their weddings, where their children will go to school, their careers and a multitude of other life decisions. Many people take out life insurance to ensure that if anything happens to them prematurely their families will be cared for. They buy health insurance to ensure that if medical issues arise they can afford to pay for treatment for themselves and their families, and they pay for home insurance in case something unexpected happens to their home. So, why do many people fail to plan for one of the most important aspects of life, their aging and the possibility of disability or certainty of death? Why do so many people fail to consider how not planning for their incapacity adversely impacts their families?

After practicing law for many years, I noticed clues emerging which shed light on that question. Many people think of incapacity or death in the abstract, as something that happens to others. Some harbor the irrational belief that planning for one’s death somehow hastens it. Prizing self-sufficiency and unwilling to contemplate the possibility of being unable to care for themselves, others declare, “I’m going to live forever.” Not familiar with hiring a lawyer or concerned about (unknown) costs, some attempt their own estate planning, relying on the advice of friends or other. Lay people are frequently not fully informed about federal and state tax laws and California probate laws, others purchase deceptively low cost alternatives, often prepared by non-lawyers, which prove to be defective and in the long run more costly. Some delay post-death planning to avoid the emotion of having to anticipate their, or their spouse’s death. When health emergencies or serious illness compels them to implement an estate plan, time constraints, physical or mental conditions often limit the options available.

People who fail to plan ahead or attempt “to do it themselves” can create ambiguity about their wishes, and cause conflict between family members. Situations like this can mean that assets must be probated, an unnecessary cost. In some cases, a court ordered conservatorship for spouses or guardianships for children must be put in place.

Our court dockets are full of litigation involving people who failed to adequately plan for their death or incapacitation. Years ago, I was involved with a case where Ms. C., an elderly, unmarried woman with a substantial estate, prepared a handwritten Will in anticipation of her death but made no provision for her care in the event of incapacitation. When she suffered a debilitating stroke, she was placed under conservatorship as she had not created a Trust to manage her assets in the event of disability (and death). When Ms. C passed away it was necessary to probate her holographic Will. While Ms. C’s Will was ambiguous about exactly who was to receive her estate, it clearly stated that she did not want her relatives to inherit. The distant relative ended up inheriting almost one-third of her estate because Ms. C did not do proper estate planning.

Cases like this are not rare. In fact, California’s conservatorship system has struggled to keep up with the number of seniors who, like Ms. C., become unable to look after their own interests. With no alternatives in place, they must rely on the supervision of our courts and the integrity of family members they did not choose or strangers for their well-being. Although conservatorships operate under the supervision of the court and involve lawyers who are officers of the court and, frequently, the Public Guardian’s office (government employees enjoying the public trust), these systems can and do fail, leaving people financially vulnerable.

This begs the question, shouldn’t we be the ones to take measures to safeguard ourselves and make the important decisions about our care and the management and distribution of our estates rather than legislators, courts and strangers? We all have the opportunity to prepare for the future by proper planning. Through our estate plans, we can protect ourselves and our families from unnecessary administration expenses and taxes, delays in distribution of the estate and loss of privacy. In order to avoid any or all of these situations, the best thing to do is to plan and to obtain competent legal advice. There are many ways to find a lawyer, however, the important thing is to find one and put them to work for you and your family. A properly prepared estate plan is our best assurance that we will be well cared for in the event of our incapacitation and that, at our death, our estate will be distributed as we intend with the minimum administration expenses, taxes, and family strife.

Mr. Macgurn has practiced law in California for almost 40 years, the last 33 in his office in Carlsbad. He is a certified specialist in Estate Planning, Trust and Probate Law (State Bar Board of Legal Specialization).