You may have heard the old joke, “where there’s a will… I want to be in it.” That may be true, but effective estate planning covers much more than just “who gets my stuff.” When you sift through your own reasons for doing estate planning, you may find that naming who gets your stuff takes a distant back seat to far more important considerations.
The primary concern most of us have about our estates is figuring out how to stay in control. Does it really matter who gets your stuff if you don’t get to enjoy it during your lifetime? So the foundation of your estate plan should be making sure that you are in control of your stuff for as long as you are alive and well.
The next step is identifying and naming your “substitute decision-makers,” who will step in and take care of your stuff if you become incapacitated or die. Naming the right individual will be one of the most important choices you make. These folks will make or break your estate plan.
Part of staying in control of your stuff involves protecting it from creditors, predators and plain old bad luck. Think of your estate plan as a castle. Imagine a large enclosure surrounded by a moat. In the old days, the moat would be stocked with alligators. With your present-day estate plan, you can stock the moat with a different kind of gators. Litigators are attorneys paid by your insurance company to protect you from people who would like your stuff to be their stuff. Having adequate liability insurance is a critical element of your estate plan.
The walls of your castle represent various legal structures you can put in place to protect your home, your business, your rental properties and your other assets. The legal structures might include trusts, limited liability companies, corporations, limited partnerships or a combination of entities. You can also consider using a special kind of ownership with your spouse called “tenancy by the entirety.”
Ultimately, you will want your estate plan to assure that your stuff goes to whom you want, when you want, the way you want, with the lowest overall cost, delay and loss of privacy. You may want to put special restrictions on a gift to one beneficiary without imposing the same restrictions on your other beneficiaries. You might have special assets or special situations (including a special-needs loved one) that require careful planning. The only way to navigate the alternatives is with the help of experienced counsel who can educate you as to the available options, and help you pick the ones that are right for you and your loved ones. Good counsel can help you build the castle that is just right for your situation.
SCOTT MAKUAKANE, COUNSELOR AT LAW
Focusing exclusively on estate planning and trust law.
Watch Scott’s TV show, Malama Kupuna
Sundays at 8:30 pm on KWHE, Oceanic channel 11
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