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Estate Planning- when it’s the last thing you ever want to do.

Updated: Apr 17

“Nothing is certain except death and taxes.” Benjamin Franklin.

For most, wills and estate planning documents seem to belong to the same category as death and taxes, i.e. the things we don’t want to spend our money on, don’t want to think about and don’t expect to receive any personal benefit from.


Of the above, taxes would probably have the most positive public perception. Whilst success can probably mean a bit of a blow to the rhetorical hip pocket, it doesn’t take much to convince people of the civic good that comes from the collection of tax dollars or even the egocentric benefits of better roads, education and health care.


Far superior minds to my own have tried and failed to make the subject of death easier to consider and estate planning probably gets lumped into the mix together with death because people think of estate planning as something that is overwhelmingly concerned with the subject of death.


Personally, I don’t see it that way, I think of estate planning as legacy planning, I see it as an expression of optimism, of knowing that we are loved, we are appreciated, we are missed when we are absent and that those around us value our input our thoughts and our opinions. I see it as a kindness to those we love and a testament to the impact we know we have on the lives of those around us. But I’m an estate planning lawyer, I can’t expect everyone to think exactly as I do.


So, I thought I would explore a concept that I think many struggle with. I want to explore the mindset of the reluctant estate planner and talk through some of the solutions they may come up with as a way of dealing with what they see as the ‘difficult’ topic of estate planning.


I will end with why I believe, in my humble opinion, that Inele Law offers a service that meet the concerns of the reluctant estate planner with sensitivity and in a way that strives to ensure that their estates are not left vulnerable.


For the reluctant estate planner, the one that doesn’t want to have to spend a single cent or second more than they must, I find that there are some typical approaches:


No estate planning documents


Whether from a complete reluctance to broach the subject at all or because of extreme procrastination, by far the worst-case scenario is to not have any estate planning documents at all. Where we are talking about not having a Will, this means a dependence on the intestacy rules to administer any part of your estate that is not jointly owned.


Even if the intestacy rules are entirely in accordance with your preferences, this still means increased delay in receiving their inheritance for your beneficiaries and all this while your loved ones are still grieving your loss. Your loved ones are effectively left rudderless to determine what they should do with your estate, who should be left in charge, and even if this can be handled without causing too much stress and heartache, suddenly your family is put into a position where they may be put to prove the nature of their relationship with you. Birth certificates, marriage certificates, proof of divorce, birth records searches, contacting any of your previous solicitors and affidavits from your family and friends, all of these may be required for the administration of your estate to proceed, and all of this could be avoided if a will has been prepared during your lifetime.


Where the situation is not one of your death but one of your incapacitation, this can be even more harried. If you don’t have capacity, you are no longer able to make any estate planning documents, so it’s already too late. Depending on the decision to be made, your family may be at the mercy of any institutions that need to be consulted including banks, medical professionals and nursing homes, and if your incapacitation continues this will likely mean that a tribunal will need to decide who is to be put in charge of your affairs. Given that most people would be reluctant to hand over their decision-making ability without at least having a say over who it should be handed to, I would think that the argument for having a Power of Attorney and Enduring Guardianship document set up effectively makes itself.


DIY


Next up we have the estate planner who is convinced enough to at least create some documents, although they are not prepared to engage a solicitor to prepare these documents for them. These are typically people who believe their wishes are ‘simple’, ‘not complex’ or ‘self-explanatory’. They do not see a benefit to be derived from a bespoke service or believe they are not able to afford such a service.


Whilst I am happy to argue with the logic of taking the DIY approach out of a belief that your estate is too simple to worry too much about, if your situation is that you wish to have documents prepared by a solicitor but are concerned about the cost of this service please book a call with us to discuss your matter today. Our Book a Call service is obligation free, and we would be happy to discuss how we can work with you to keep our costs to a minimum because we believe that everyone deserves the chance to secure their legacy with confidence.


In discussing the DIY approach, I am thinking of those that write their documents themselves using information they find online, those who use a Will or similar Kit or even those who use an online platform to prepare their documents. With the progress of AI, I’m sure its only a matter of time before even more services become available.


In the name of self-efficacy, I am a supporter of anything that allows people to feel competent and in charge of their own destiny, and for reasons I have gone through above, if the alternative is no documents at all, I am completely in favour of the DIY option.


However, I also believe that effective document drafting is a skill and a craft honed through years of trial and error. I believe that your estate planning documents do not exist in a vacuum independent of the life you have lived throughout your time on Earth and I believe that, in over a decade of practice as a solicitor, to date I have yet to meet a ‘standard person’ who has provided me with ‘standard instructions’.


Our wishes for our estate are not just our worst-case scenario or death wishes, they exist as a culmination of our life’s best efforts. They are a statement to the world of who we are, who we love and what we wish our legacy to be. The why of it all is just as important as the what. This is where a solicitor’s file notes can make all the difference. Whilst the DIY option can be convenient, it is also likely to come about with little to no elucidation of why it is written the way it is. If there is something unclear in your instructions, if interpretation of your Will is needed, your DIY documents can be found wanting. They can even lead to outcomes that are completely contrary to your actual intention in having them prepared in the first place.


Solicitor prepared documents


Even when documents are prepared by a solicitor, there can still be some traps that the reluctant estate planner can be tempted by. Two of these, which we will explore, are the “One and Done” and the “Cheapest is Best” approaches.


I find that “One and Done” can describe the type of estate planner who waits until they are “the right age” to prepare their documents. They don’t want to think about these topics at all, so when they do, they only want to do it once. They may wait until retirement is a close prospect or until all their children are born or have come of age or whatever life event as they deem appropriate, has eventuated.


The other type of “One and Done” thinker may not necessarily wait until they are older, but in making their estate planning documents they would rather set up complicated papers that cover multiple possible eventualities, including the divorce of their not yet existent grandchildren, rather than ever having to think about this subject again.


Now there is absolutely nothing wrong with being thorough and ensuring that your estate is properly and fully dealt with, regardless of the circumstances that eventuate. The problem with “One and Done” is the one part. Estate planning documents should not be left alone to never be considered again until they are needed. Life is full of pivotal moments and your documents need to be regularly reviewed, even if the product of your review is a decision that nothing needs to be changed. Again, a solicitor’s notes can be especially helpful in documenting this process.


At a minimum, you should not be thinking about updating your phone more regularly than you think about reviewing your estate planning documents.


The other trap the reluctant estate planner can fall into is the “Cheapest is Best” approach. Again, I find this can be a product of the fallacy that there is such a thing as a “Basic Will” although it can also be a result of being legitimately concerned about being able to afford estate planning documents.


If costs are the concern, please book an obligation free call with us to discuss any concerns you have with us today. We would be happy to discuss your situation and provide you with an estimate of our anticipated costs to set your mind at ease.


Whilst there is nothing wrong with seeking the best value for your money, I find the trap here is that estate planning may be treated with a flippancy that it does not deserve.


Estate planning is not just a bonus added on to the end of a different legal service and whilst the solicitor who helped you sell your house may be in the best position to assist you because they already know a bit about you, and while they may be able to offer you the best price in consideration of the fact that you are a returning customer,  you need to ensure that the solicitor who prepares your Will has an interest and a passion for the area of Wills and Estates. The law in this area is not static and your solicitor needs to have enough time and interest to dedicate to this area of law to ensure that your documents are prepared correctly.


Our Service

At Inele Law we practice exclusively in the area of Wills and Estates. Specifically, we concentrate in 4 areas being:

1.      The review of existing estate planning documents for new clients.

2.      The creation of your estate planning documents.

3.      The regular review and update of your estate planning documents.

4.      Administration of deceased estates.


We offer a free initial call with our ‘Book a Call’ service which means that everyone has the opportunity to discuss their estate planning needs with our Principal Solicitor. After this call we can send you a personalised cost estimate for our service which you are free to either accept or decline with absolutely no obligations. If you do choose to create or deposit your documents with us, we also offer a regular review service whereby we can contact you periodically to check in and discuss whether an update of your documents is needed.

 

Our aim is to build a relationship with our clients, not just to be paid per document.


We try to get to know you and understand your thoughts, feelings and motivations so that your documents can be created in the best way for you and for your loved ones.


We also have the same focus on relationship building and empathy for our clients, who are appointed as Executors or Administrators, who are dealing with the administration of a deceased estate. We strive to make the process as smooth as possible and try to ensure that we are with you every step of the way to provide you with understanding and clarity about what can be an extremely arduous process.

 

Whilst undoubtedly estate planning can be an intimidating subject to broach, rest assured you do not need to approach it alone. Contact us today to discuss how we can help.

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