’Til Death Do Us Part
By: Paul Gagliardotto, Staff Writer
If I were to ask you what the top 5 things on your mind concerning your future are, what would you say? It’s a safe bet that what you leave behind and to whom is not on that list. After all, rarely do young professionals think so far ahead when there is currently so much yet to accomplish.
Approximately sixty percent to seventy-five percent of Americans do not have a valid will. [1]. That is a very worrying statistic because it clearly illustrates a problem in today’s society. Everyone is caught up in the here and now, seemingly forgetting about the where and when of their lives. Among that where and when is the protection for yourself and your loved ones. Despite only starting out in this profession, it is very important that we begin to think about what might happen after our professional careers or if something were to happen to us during the prime of our lives. While there is no way to predict what could happen, we can educate ourselves so we are prepared.
One very important device to consider for that protection is having is a living will. A living will is defined as, “an advance health care directive “either stat[ing] a person’s wishes and instructions regarding future medical treatment in the event of incapacity or appoint[ing] someone to act as a proxy.”[2]. In the event of an emergency this should be considered not just a health care directive but our prime directive. If you were to become incapacitated tomorrow who would make the decisions for you? In following this prime directive, the person you literally trust with your life will be able to see that duty through. However, not only is just having a living will important, maintaining it so that it is up to date with recent events is just as critical. Consider what happened to Lamar Odom this past year. Through a series of decisions, albeit poor ones, ended up incapacitated in a less than desirable situation. However, that wasn’t even his worst mistake. Arguably his worst mistake was not updating his living will and subsequently found himself in a situation where his life could have been decided by a Kardashian. That is not a situation anyone should find themselves in.
Another tool to consider is an irrevocable trust. We’ve all heard about life estates within property law, but some of you might not know about the distinct advantages an irrevocable trust offers. “First, a trust can be used to create discretionary interests whereby the trustee can be given the discretion to distribute income…Second, a trust may be used to facilitate the sale and reinvestment of the property by a trustee…” [3] These trusts are extremely beneficial to those you love. It would allowing them to redistribute, reinvest and facilitate the growth of the estate that you leave behind. It also gives them the flexibility to use the money in ways they otherwise could not. This means that by creating discretionary interests, you can leave them more than something physical, you can leave them the ability to choose for themselves what to do.
Whether or not you have just entered the field of law or have been practicing for years, what you leave behind is of the utmost importance. Using a living will can protect yourself in a time of crisis, and make sure that you get the care and attention you need. On the other end, utilizing an irrevocable trust to sort out your estate will protect your beneficiaries and make sure your hard earned estate will be used in a variety of ways to benefit your loved ones. You can use the law to protect yourself and benefit your loved ones, and it is never too early to start planning.
[1] (Gerry W. Beyer, Teacher’s Manual to Accompany Teaching Materials on Estate Planning 2, 3d ed. 2005
[2] (ARTICLE: LIVING WILLS: VALIDITY AND MORALITY, 30 Vt. L. Rev. 71
[3] (5-18 Murphy’s Will Clauses: Annotations and Forms with Tax Effects § 18.04)
