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Why Should I Care? I'll be Dead!

Estate planning can be difficult and uncomfortable for many people. It’s hard to answer many questions that are part of a good estate plan. We have already discussed a few of these questions in our blog: For example, who will be your Personal Representative (or “Executor” in some states), what will happen to your remains, and so forth.

Sometimes when we meet with a married couple to discuss estate planning, one of the parties will be anxious to put a solid estate plan in place. Maybe that person recently had a family member die, and there was either a good experience or a really bad experience which motivates that person to construct his/her own estate plan. The other person might not be so motivated, and might in fact be uncomfortable with the process.

When that happens, sometimes our probing questions result in the less motivated person answering “Why should I care? I’ll be dead!”.

If only it were that simple.

A solid estate plan can provide protection for many instances where you might be vulnerable before you pass away. For example, if you are in a car accident and are unable to handle your financial matters or make medical decisions for yourself, who will make decisions for you? With a properly drafted Health Care Power of Attorney and Financial Power of Attorney, you can name an advocate who will speak for you without going to court for authorization. If you do not have the documents in place, you might end up in a court proceeding (a “guardianship/conservatorship”) that can be expensive and exceedingly invasive. In a court supervised guardianship/conservatorship proceeding, there are at least two attorneys involved (sometimes three), all of the formalities of dealing with a process in state court, a social worker (-type person), and a medical provider who report to the court. Read: Very expensive and very invasive.

In one case I was involved in years ago, the “Guardian Ad Litem” (or the attorney the court appoints to act on behalf of the alleged incapacitated person) presented the court with copies of the alleged incapacitated person’s credit card receipts, all of which were color coded by the Guardian Ad Litem to show which family members received which Christmas presents that year. It was extremely uncomfortable and could have probably been avoided had the alleged incapacitated person simply had the proper estate planning documents in place.

In addition to caring about your health and welfare during incapacity, we hope that you also care for the health and welfare of your family members and their relationships after you die. At that point you might not care who received the light up maple tree, but hopefully you have enough love and respect for your family members and friends now to provide them with the tools to facilitate administering your estate without destroying their relationships. At the very least, by caring now what happens after you die, you are building the value of your legacy (and reducing the likelihood that attorneys will be involved down the road to resolve disputes).

So the answer to the question is really that even if you don't care then (when you're dead), you might still care now about your own privacy and your loved one's relationships enough to plan for the future.

Post by: Vickie R. Wilcox, J.D., LL.M. (Taxation)

Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.



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