David G. Bale
Wills and Trusts: What They Are and Why You Need Them Part 3
Wild Cards and Other Considerations
The above concerns and documents are often affected by unique aspects of a client's situation. These may include tax issues where the property is significant; family law issues, such as a blended family or situations requiring separate financial controls, gifting intent as between spouses to their families, or disability of a family member, to name a few.
As mentioned, wills are determined by state law. Therefore, it is important to consult with counsel when moving residence to another state, or if you have property in more than one state. While some states will honor a will prepared in another state, this is not always the case and depends on the circumstances of its creation and the domicile state law at the time of its creation.
If risk of litigation is present, there may be asset protection plans that should be used to protect the property for a family or an individual. Sometimes a Trust is used for this, and sometimes another type of legal entity may be useful, such as a limited liability company, partnership or corporation.
How property is held should be reviewed when planning. It may be held by the client under a title document, such as a bank or investment firm, or the asset may be held directly by the client. The property in question may be in a safe deposit box under a different name than the client's name.
There are really too many potential concerns of this type to list them all, and the discussion with the clients will hopefully flush out the issues and help resolve them. So, getting it done in advance is imperative in order to meet the contingency of an adverse event.
Like my boyhood management of the farm fences, lack of planning can result in a poor use of resources. In my case, I may have enjoyed the independence and spirit of adventure tracking down the animals loosed on the neighbor's property. However, there were other more productive ways of spending my time, and even I had the occasional surly reaction to these animals grazing on a neighbor's property. I doubt many will enjoy collateral benefits from failure to do their estate planning!