I’ve been through this a few times now (not dying myself but being involved in the death of others…well, I shouldn’t say “involved” either but you get the idea) so even though this has nothing to do with real estate I thought I would share a few insights with others who think that when death comes knocking on their door their last wishes will be respected. It turns out that the reality of dealing with the departed/ departing’s last wishes is far more complicated than you would imagine. Herewith a few a shocking truths – well they were shocking to me at least. Oh…and in case it’s not obvious I am not an attorney and you would be well advised to seek the advice of a qualified legal professional in these matters.
Those Living Wills Are Of Limited Value
These are also known as a Physician’s Directive. So your estate planning attorney drafted a nice legal document for you to sign that says you don’t want any life prolonging medical care and you’ve tucked it away in some fireproof box, confident that you know exactly how you are going to be handled. However, there are a few catches.
9 times out of 10 (OK, I really don’t know the stats so I just made that up but it’s a significant percentage) when you go into the hospital to never be discharged alive you are not coming in with those legal papers in your hands. Maybe you were in an accident or you just got really sick at the last minute but you were not planning this trip to the hospital. So the medical staff is going to turn to the family for instructions and they don’t ask to see the living will.
Besides, this legal document is kind of like the constitution. It lays out general guidelines but it needs to be interpreted. Sure, you didn’t want to be intubated but guess what? Suppose you are 30 years old and they can intubate you for just 24 hours and then you’re going to walk out of the hospital jumping in the air? Do you still not want to be intubated? So the medical staff is going to turn to the family for instructions.
Oh…and the hospital staff is going to make it pretty darn clear what they think your family should do – or maybe it was just pretty clear in the two cases I had to deal with. If you are around 90 years old they are quick to give up on you.
The bottom line is that you better be on good terms with your next of kin and they need to really understand not just what you want but what you mean.
Your Burial Wishes Are Easy To Miss
I don’t know how many times I’ve heard stories of survivors finding out months later that they buried their loved one in the wrong dress (sorry, but it seems that it’s mostly women that have this last wish). The problem is that once the family goes into funeral planning mode the clock is ticking fast. There are a ton of decisions to be made and arrangements to be made in a short time frame and these types of requests are usually written on pieces of paper tucked away somewhere. When you’re trying to make 20 decisions and make travel arrangements and write an obituary and a eulogy no one is going through file drawers looking for pieces of handwritten paper.
So my advice is that if you have a last wish like this you need to put it in the Death File and make sure everyone knows about it. I don’t know how many times I’ve told my family that my headstone needs to read “I was right” so I just hope they remember it. Hmmm. I better write it down somewhere.
Stuff Is Going To End Up In The Wrong Hands
This is kind of like the burial wishes – maybe you’ve written out a set of instructions as to who gets the Christmas plates and who gets the antique letter opener. Now it’s best if that is part of the will so that after you’re gone and there is a formal reading of the will everyone will know what is supposed to happen. If not, it’s going to get missed just like your burial instructions.
However, even if it is part of your will it can still get missed. Suppose your estate gets liquidated because you are moving into a nursing home and you’re in no position to oversee the process. No one is reading the will while you’re alive so all these goodies are going to get sold or given away. So, again, you need to make sure that everyone knows where these instructions are and when they get activated.
There Is Lots Of Wiggle Room In Those Trusts
So your estate planning attorney drafted a bunch of trusts that beget other trusts that beget other trusts. It’s pretty complicated stuff. In addition, the trust documents necessarily give the trustee certain latitude in deciding how things are handled. Wording like “reasonable”, “discretion”, “judgment”, “necessary” has to be in these agreements and can be broadly interpreted. Heck, the trustee might even have the power to dissolve the trust and distribute all the proceeds to the beneficiaries. Just make sure you look over the wording of your trust agreements and ask yourself if you are comfortable with how it could be interpreted at the extremes.
It also seems to me that no one is really policing the process to make sure that the trustee is fulfilling their duties precisely. The government certainly isn’t and the trustee is not really accountable to any accountants or attorneys. They are only accountable to the beneficiaries. So as long as the trustee is not misappropriating funds and all the beneficiaries are in agreement with the proceedings the trustee seems to be able to do whatever everyone agrees to – even if it might be in conflict with the original wishes of the deceased.
Let me give you a hypothetical situation. Suppose all the beneficiaries are 27 – 29 years old and the trust agreement says the assets are to remain in trust until they turn 30. If the trustee distributes the funds prior to them turning 30 who is going to stop him/ her? Suppose they’re 15 – 17 years old? See what I mean? You better trust the trustee. [I actually need to research this a bit further. I wonder if the financial institution with whom the assets are held polices this. I find it hard to believe that someone as incompetent as a Bank of American is that capable.]
Oh..and maybe you amended things over the years but your attorney switched firms and now they can’t find copies of the amendments and you didn’t keep your executor apprised of all the amendments and your own files are incomplete or the documents are in multiple folders that no one is checking. So the whole thing is a mess. Well, in the absence of copies of the amendments they are presumed to not exist.
Anyway, all this is just a few things for you to think about before you go gently into that good night.
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