I interviewed an estate attorney, Linda Engleby to get the inside scoop for estate planning. I wanted to uncover some of the myths with wills, the top concerns women have, and some important things to think about. I hope you get as much value from her answers as I have.
1.In your opinion, what are the top estate planning concerns most women have?
Each client is unique in her concerns, which is why it is extremely important to work with an attorney who you feel comfortable with and who you trust. Estate planning is often not the easiest process because issues around values, concerns about particular family members, and attitudes towards wealth arise. In general, however, I find that women who have started a business or become financially successful in their careers have a strong sense of wanting to protect that for their children and want their descendants to have a similar sense of independence that comes from financial security.
Of course, if a woman has young children, the issue of naming the best guardian is always difficult. This decision often brings up issues of values in the sense that a mother wants to name a guardian who will parent in the same way and impart the same values to her children. I always remind a mother that no guardian will ever be able to replace her and the choice never feels completely right!
2.What are the top misleading ideas/concepts people come to you with when dealing with their estate documents?
Clients often ask me “What do most people do?” or “What can I do.” My response is always, “This is your plan and you can do whatever you think is best for your particular situation!” I understand that clients find it very helpful to know examples of what is typical, and I can provide guidance in that regard, but what is important is that each client estate plan fits their family situation. Establishing the parameters of trust provisions, for example, is almost completely at the client’s discretion. I’ve had clients draft their own statement about how they want the trustee to approach the use of money for the beneficiary. I encourage clients to work on statements to include in their Wills so that their beneficiaries understand how they would like the assets to benefit them. These statements are often not stated in legally binding language, but rather provide guidance for the trustee or the beneficiary as to how the testator desires the assets to be used. For example, if a trust provides that distributions may be made for “education,” would that include travel for educational purposes? Would it include a private pre-school or should the money be saved for college and higher education? Does this include summer camp that has an educational component to it? Does it have to be toward a degree program?
Clients will also tell me, “I know this is unusual, but one of our children is not financially responsible” or “one of our children has an addiction issue” or “we don’t think our child’s marriage is stable.” This makes me smile because what is actuallyunusual is when a client’s family is completely stable and there are no concerns about any member or financial issue!
3.How would you describe the estate planning process to someone who thinks planning for their death is an omen of their death?
I always joke that once a Will is signed, the client will never die! On a more serious note, the fear of death is so ingrained in our society that our death is indeed very difficult to talk about and acknowledge openly. Clients often preface questions about their estate planning with “IF I die” and I try to gently state in my answer “WHEN you die.” More often than not, clients will acknowledge this fear at the beginning of our planning process, yet refer to a sense of relief once the documents are signed and the project is completed. I think the sense of relief at having everything in order for one’s death is far more comfortable to live with than the fear that may be very real and keep one from starting the process.
Of course, estate planning can take on a very different hue when a client has been diagnosed with a terminal illness or has reason to believe truly that their death is imminent. It’s hard to say how this planning process goes because it is always different. It is always humbling for me to be a part of a meeting with a client who is truly facing their mortality, and makes my job as an estate planning attorney truly gratifying and rewarding.
4.What is the biggest benefit you’ve seen from estate planning? Instills confidence, caring for your loved ones when you are no longer here, leaving your legacy the right way, etc.
While working with clients, my goal is always to create a finished product that gives the client confidence. The planning process is generally not done overnight, because often clients need to think about certain issues and really discern what they feel is best for their situation. It may be that the decision they arrive at after a few weeks of pondering and discussion with me or with their family members is the same decision they would have arrived at right off, but the act of discernment is often important to allow the client the sense that it is the right decision. I will say to a client that sometimes you have to go ‘round the bend a few times to get comfortable with your decision. I think that process is important and has value. The planning process can, therefore, take more than a few weeks and it is not unusual for clients to take a few months. I’ve even had clients with more difficult situations take several months before we get drafts that they are comfortable signing. (I had one couple, both in their 80s and very happily married, tell me that the planning process had elicited more “hearty discussion and some controversy” than they’d had in years, but at the end when they signed their documents, they both felt sure that their estate plan carried out their intentions clearly and in keeping with the values they had lived together for more than 60 years of marriage.) If a client signs documents and still has concerns because they are thinking “should I have included my daughters-in law as beneficiaries,” or “should I run the trust out longer for my son if he cannot manage money” or “did I leave someone out of my Will and do I regret that,” then I haven’t done my job.
5.What is your biggest piece of advice for women going through a transition: divorce, retirement, loss of a spouse?
Each of these situations is so very different, but each comes with a lot of emotion and upheaval, so acknowledging that first and foremost is important. Often a woman will hear the advice that she shouldn’t make any decision for a year after such an event, and this is often very wise because I don’t think we process information as clearly and precisely directly after an emotional event. I’ve certainly had the experience after a significant loss of thinking I was understanding an issue clearly, but in retrospect, I see that I really wasn’t because I was still in a bit of a fog. I meet with clients directly after the death of a family member, and I can tell that they are listening intently to my legal advice about the estate administration process, but I know that they will not retain a lot of the information because they are on “overload.” I will tell clients in this situation that I will send to them a follow-up letter letting them know what issues they will need to keep in mind, and what issues I will keep in mind, and nothing falls through the cracks. So my first piece of advice is to recognize that for most of us, we will be in that “fog” for a period of time and to be gentle with ourselves.
However, some decisions need to be made within a certain timeframe having to do with tax issues or federal and State filing requirements, so many issues need addressing within that first year. Indeed, after a death, estate tax returns must be filed within nine months, and in New Jersey, Inheritance Tax Returns must be filed within eight months. Income tax returns are also due, generally within the year, and ultimately, the estate needs to be distributed. Making sure you have trusted advisors and attorneys who will not let details and decisions languish is vitally important. In the best case, these trusted advisors are already part of a woman’s life so that introductions don’t have to be made at these difficult times.
Retirement is an opportune time to review your estate plan and particularly your beneficiary designation forms. It is a good time to take stock of your financial life, readjust your budget, and determine what might be most tax efficient in terms of not only income taxes but estate taxes. A woman who has significant wealth may want to start a gifting program to transfer assets to descendants and will want to have advice about doing so in tax efficient ways.
Divorce presents its own circumstances that I want to give particular attention. If a woman is working with her attorney on a property settlement agreement with her soon-to-be ex-spouse, it is often very helpful to have an estate planning attorney review the property settlement agreement with an eye toward any ongoing obligations which the woman may have or benefit from in order to make sure that her estate planning is integrated with the property settlement agreement. For example, if each party must carry a life insurance policy for the benefit of the ex-spouse or their children, it may have estate tax consequences, because the value of the life insurance policy will be included in the woman’s estate. If the property settlement agreement states that the ex-spouse will provide life insurance for their children and the proceeds are to be held in trust if the ex-spouse dies, who would the trustee of the trust be and what are the trust provisions? Generally a property settlement agreement will not go into great detail about these types of issues simply because a family law attorney will not be reviewing the agreement with an eye to estate planning issues. It is very difficult to remedy these omissions and oversights after the death of the ex-spouse, but very easy to revise the agreement before it is signed if an estate planning attorney reviews it.
No matter what time in a woman’s life, the estate planning process should be a positive one and the end result should provide her with confidence.
Linda Engleby is an attorney in Morristown, NJ who specializes in estate planning and trust and estate administration. Her contact information is below:
Email:lengleby@coughlingduffy.com
Phone Number: 973-631-6032
Address: 350 Mount Kemble Ave
Morristown, NJ 07962
Raymond James is not affiliated with and does not endorse the opinions or services of Linda Engleby.