You may have heard the old joke, “where there’s a will … I want to be in it.” That may be true, but is estate planning really all about “who gets my stuff?” Who gets your stuff is important, but when you sift through the reasons for doing estate planning, you may find that identifying 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 you are in control of your stuff for as long as you are alive and well, and so your hand-picked decision makers will step in if you are unable to manage your stuff yourself. Choosing your successor fiduciaries is as important as any decision you will make about 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 stone enclosure surrounded by a moat. In the old days, the moat would be stocked with alligators to discourage anyone from approaching the walls. With your present-day estate plan, you can stock the moat with a different kind of gator: litigators — attorneys paid for with insurance — 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, business, rental properties and 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 to protect your stuff from claims against one spouse, and to make it so that both spouses must agree to any mortgage, sale, or other transfer of the tenancy by the entirety property.
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.
Thinking of your estate plan as your castle helps you to zero in on your true values and objectives when it comes to making arrangements with your assets that will put you and your loved ones in the best possible position when something bad happens in the future.
SCOTT MAKUAKANE is a lawyer whose practice emphasizes estate planning and trust law. He is a graduate of Ka‘u High School, Duke University, and the University of Hawaii School of Law. Scott has practiced estate planning law since 1983. He is the principal of Est8Planning Counsel LLLC, a 6-lawyer firm with offices in Honolulu, Kihei (Maui) and Kalaheo (Kauai). Scott has chaired the Elder Law and the Probate & Estate Planning Sections of the Hawaii State Bar Association, has served as President of the Financial Planning Association of Hawaii, President of the Board of Trustees of the Foundation of the Rotary Club of Honolulu, and President of the Christian Legal Society of Hawaii