Estate planning in secret: An idea whose time has come … and gone

Estate planning in secret is a medieval concept.

In the Middle Ages, land was wealth and the king owned the land. When you died, your right to use the king's lands usually passed to your eldest son (primogeniture), and that could not be altered by writing a will.

A third of your personal property went to the Church automatically. An additional third could be claimed by your surviving spouse. You could dispose of the remaining third by writing a will. Very few people could read or write, other than priests, to whom illiterate parishioners dictated their wills after receiving the last rites. Thus, the mysteries of death and inheritance became covertly commingled.

Provided their heirs can pay the taxes, inhabitants of the 21st century are largely free to dispose of their land and personal property as they choose. Indeed, much wealth passes outside of wills—through retirement benefits, life insurance, family partnerships and intricate trusts, and in jointly held property arrangements. Transfer of one's estate usually takes place over time in carefully planned tax-saving increments, all completed long prior to the deathbed.

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Confusing Croakspeak

The scrivener-confessor-priest has been supplanted by the estates lawyer. Ecclesiastical Latin has been supplanted by Croakspeak, the new language of estate planning, still largely incomprehensible to otherwise worldly and sophisticated clients.

Most of us who have es-tate plans can't tell you what's in them. We thought we understood at the time we signed the documents, but somehow that has slipped away. Granted, estate planning can be complicated, especially for the well-heeled and tax-avoidant. And it's not much fun to think about the financial fallout from our croaking. But that's not why we forgot. We forgot because we didn't take charge. We abdicated our financial immortality to lawyers—hired wizards —who beclouded our memories with Croakspeak.

Spoken Croakspeak assumes we can't bear to talk about our own death (If something happens …”).

Written Croakspeak sounds much like a medieval cleric's incantation (“I give, grant, bequeath, devise, set over and enfeoff…”).

Put yourself in charge

Arise all ye who would rather sit for a root canal than discuss the financial consequences of your croaking! Take charge!

Begin with three sheets of blank paper. Forget all you know, or think you know, about estate planning. Make your mind as blank as the paper.

• On one sheet write down the names of those to whom you really want to give your assets when you die, and what you'd like to give each one of them.

• On a second sheet, write down what you really think those who get it will do with it … or do about it.

• On the third sheet, write down what you really want to do, experience or accomplish between today and the day you croak.

At the very first meeting with your lawyer, and before the cave becomes beclouded with Croakspeak, produce these three sheets of paper. Insist that planning begins with what you have written down. Then let your lawyer do his or her Croakspeak thing, but in draft form only. Your lawyer is expert at making sure that what you want to happen—post croak—actually comes to pass. But he or she doesn't know what you want unless you say it. And unless you say it very clearly, your lawyer will become preoccupied with saving croak taxes and with Croakspeak syntax … all at the risk of casting your three sheets to the winds.  

Here are three more suggestions about taking charge:

1. Ask your lawyer to write you a letter in plain language—scrubbed of Croakspeak—describing the estate plan he or she proposes and how it will play out in your life and in the lives of those who will get your stuff.

Your lawyer may balk at writing such a letter, certain that your dear ones will probably read it and likely misunderstand it. Those who insure lawyers against professional oops caution them never to communicate with clients' dear ones because dear ones tend to view your lawyer as theirs also. But be resolute and get that letter.

2. Share the letter with the dear ones who will get your stuff. Refer their comments, suggestions and questions to your lawyer. If he or she balks at answering your dear ones directly, ask your lawyer to answer you, not them, with a follow-up letter. You'll know what to do with that letter.

3. Take steps 1 and 2 above before you sign any documents. Do all this while you are still healthy and influential with those dear ones. You may not change a thing as a result of sharing your intentions with them. You're not asking their permission or giving them a vote. You are searching together for the fairest, most workable, most loving disposition of your stuff to those you treasure most.

Involving the dear ones

If we do our estate planning in secret, we leave our dear ones what we think they ought to want in ways we think they ought to want to get it. But we don't involve them. Too many dear ones are taken for granted or by surprise. The most cultivated Croakspeak can never substitute for candid conversations with our dear ones. Ask them, talk with them, cry with them, get their input, then decide and instruct your lawyer to do your thing.

Yes, those conversations with dear ones could lead to tears. After all, the topic is your death. And that's hard for you and for them. But not nearly as hard as taking dear ones for granted or by surprise after you're gone.

Parenting never ends. Dear ones will long remember how you handled the disposition of your stuff. Leave them a good example they can use with their dear ones.  

Try tough love that embraces your dear ones. Don't keep them guessing. Chances are their comments may improve how you leave your stuff that will play out better in your life, and theirs.

Don't become beclouded by Croakspeak.

Take charge of your estate plan!

Gerald Le Van is a family wealth mediator with Upchurch Watson White and Max, Maitland, Fla. (glevan@uww-adr.com).

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