A FAILURE TO PLAN IS PLANNING TO FAIL


By Gary Risley, Esq.


During my two terms as probate judge and in my estate planning and probate practice, I have seen and continue to see a very troubling event: the lack of an estate plan by someone who has recently died. The failure to plan for what happens to your property, your insurance benefits, retirement plans, and other work or government benefits has the potential to leave loved ones without critical benefits, puts family members at war with each other, and often leads to unjust or unintended distributions of the assets.


The amount of misunderstanding and misinformation regarding wills and estate planning is amazing. I do not understand how people will work hard all their life to accumulate a home, land, savings, etc. that are worth $150,000 or more, but they will not spend $500 to $2,000 to assure it is protected and that the property goes to the desired beneficiaries. There is a lot of “outhouse lawyering” that goes on in this field: information from friends, neighbors, or the guy who read something on the internet last week. Estate planning is a technical area of the law, is state specific, and “do it yourself” is generally not a good idea.


A good estate plan can ease the pain and difficulty endured by loved ones left behind. The lack of a plan often results in the opposite: fear, uncertainty, and legal battles. I say a “good” estate plan because it was my experience as probate judge, and as I just recently saw in my office, a “do-it –yourself” kit or similar product often results in a will and related documents that are not correctly executed. Wills remain one of the few areas of the law where technical correctness is required in almost all aspects. When I was probate judge I estimate that I had to reject about one-half of the do-it-yourself wills filed because they did not conform to the requirements of the law. The terrible thing is that if one does not execute a will correctly there is no “do-over”; the person is dead and there is no second chance.


Oral wills are not valid in New Mexico. Handwritten wills that are not properly witnessed are invalid in New Mexico. Printed wills that are not properly executed are invalid. I could go on and on.


I will let my children decide” is not a plan, but is guaranteed to start a family war. Death and divorce are the two most traumatic events that occur in a family. Yes, your children will fight (Didn’t they do so when young?), or, if not them, then one of their spouses will spur it on. The odds are that in a group of six people (3 children and their spouses) there is one greedy jerk in the bunch. When that is the case, the war is on and the wounds that result will never heal.


The problem is amplified in blended family situations (his, hers, ours). Ex-spouses, especially those with custody of children from a previous marriage, can create havoc. Failure to change life insurance designations, worker benefit designations, and other clean-up issues from the divorce can often lead the ex-spouse to getting benefits that should have gone to the second spouse. I saw just such a case this week. Wills that address the blended family concerns can avoid many potential issues.


Couples who are living together but are not married have additional issues. A “life partner” in most circumstances has few, if any, rights when it comes to government benefits, workplace benefits, Social Security, etc. Planning in these circumstances must be carefully done and in more detail, in most cases, than that of the traditional married couple. Women who are not the primary breadwinner and have small children particularly tend to suffer from the lack of traditional spousal benefits when they are not married to the father of their children.


If you feel a responsibility to care for and nurture your family, you should also care to do so when you are gone. Why possibly wreck a lifetime of investment in your family by failing to address the issues that will arise when you pass away? None of us are promised tomorrow. If you own property, have children, a spouse, or all of the above, you should have an estate plan. An estate plan will give you comfort that you have taken care of the issues that might arise following your death, your spouse can feel secure that things will be alright, and your children will know and understand your express wishes with regard to them.


Strong fences make good neighbors. Good contracts preserve business relationships. Good estate plans provide for family and protect family relationships.