The Two Biggest Mistakes in Elder Law Estate Planning

1. Failure to address all of the issues.

A comprehensive review of the client’s situation should address planning for disability as well as for death, including minimizing or avoiding estate taxes and legal fees and proceedings. A plan should be in place to protect assets from nursing home costs. Like a chess player, counsel should look ahead two or three moves in order to determine what may happen in the future. For example, attorneys will too often place a majority of the assets in the wife’s name or in her trust in light of the husband having significant IRA assets in his account. However, since the husband is often older and has a shorter life expectancy, this may result in the IRA assets rolling over to the wife, all of the couple’s assets ending up in the wife’s estate, and no estate tax savings effected. Another example would be where the client’s children are in a second marriage but have children (the client’s grandchildren) from a previous marriage. Unless planning is done with Inheritance Trusts for the client’s children, a situation may occur one day where the client’s child predeceases their second spouse, all assets pass to the second spouse, and the client’s grandchildren, from a son or daughter’s prior marriage, are denied any benefit from the grantor’s estate.

2. Failure to Regularly Review the Elder Law Estate Plan

At a minimum, each client’s estate plan should be reviewed every three years to determine whether changes in the client’s personal life, such as their health, assets, or family history (births, deaths, marriages, divorces, etc.) impact the plan. It is unrealistic to expect a plan established today to be effective ten, twenty, thirty, or more years in the future. Over time, clients will want to change their back-up trustees or plan of distribution. They may wish to add Inheritance Trusts for their children. They might, after a number of years, wish to change from a revocable trust to a MAPT because they were unable or unwilling to obtain long-term care insurance. The client will benefit from having a plan better suited to their current needs at any given time.

Despite the knowledge and earnestness of some of the best practitioners in the land, clients sometimes do not act on the advice given. Experienced attorneys know not to take it personally when clients choose to ignore their advice or perhaps choose other counsel. People don’t always do what they need to, they do what they want to. A ninety-three year old client once told us that she “wanted to think about it” so far as planning her affairs. Experience tells us that this client is not ready to plan at the present time, despite her advanced years, and we respect that choice. On the other hand, we recall a client coming in to see us eleven years after their initial consultation stating that they were now ready to proceed. We prepared their estate plan.