Wealth Planning News

Vol. V, No. 8

Questions Arising From A Published Notice

What can you conclude when you see a public notice titled Notice to Creditors? First, you could reasonably conclude that the one who died failed to take steps to avoid having his estate become involved in our court system. Such a failure leads to speculation about other things, raising questions such as: Did this person not love anyone enough to save them the expense, delays, and publicity involved in passing things on to the inheritors? Did this person have incompetent advisors who failed to preserve the family privacy and save delays and expenses resulting from putting an estate through the probate system? Were the advisors motivated by greed for later probate work and attendant legal fees they could collect, or were they merely ignorant of the elegant and simple way to allow people to avoid the probate process at death by creating and fully funding a revocable living trust? Did the person who died attempt to plan properly by making a trust, but then failed to carry out the plan by failing to fully fund the trust, and if so, was the decedent or were the decedent’s professional advisors at fault? 

Reasonable Conclusions Prompted By A Published Notice

To many people the first thing they know when they see a published Notice to Creditors is that the one who died did not take steps to avoid the probate process for any loved ones, or perhaps did not love those who would inherit. Based on many years of experience with planning, and with helping people who inherit, our own conclusion is that the legal advisors were not fully competent to hold themselves out as good estate planners, or were negligent in helping a client implement plans that had as one important goal the preservation of personal privacy, and avoidance of delays and unnecessary expenses incident to any probate proceedings for a client who would die.

Some lawyers take pride in having their name and contact information included in a published Notice to Creditors. In their ignorance they fail to discern that often such a notice is actually only notice that the planning lawyer was incompetent in plan design, or in helping a client to implement a proper plan. Long ago a retired and very wise old attorney insisted that lawyers who put an estate into probate when their client dies are always guilty of malpractice, and should be sued by the inheriting persons.

Planning For What Is Certain To Happen

We cannot each know that a time will come when due to advanced age, or sudden illness or accident, we will become disabled and unable to manage our own financial affairs. Even so, any reasonable person who has witnessed the course of events that affected parents, or neighbors, or relatives or friends, must know that there is a substantial possibility of becoming disabled as age increases. Based on that conclusion we each have a possibility to plan for who could manage our financial affairs in event of our disability, and to give our instructions of how to do so.

No mentally competent person believes he or she will escape death, and even the most devout believer in eternal life is aware that we are now mere mortals merely awaiting the great event of hoped for immortality after our span of years on earth has closed with the death of our mortal body. The one certainty we have is that the angel of death comes closer to us as we age, and will ultimately end our mortal career.

From these known facts it is apparent that if we love those on whom we may become a burden in our old age, we should while we are still competent and able to do so, plan for how our financial affairs (and even our medical decisions) can be managed, and by whom, in event of our possible disability.

And the most obvious conclusion is that, while we are still competent to know what we have, and to know those persons we love and want to receive our remaining worldly goods when the angel of death does take us, we should plan for how to pass on what we have to those we love, how and when we choose to do so in a manner lovingly beneficial to them, with the lowest possible loss to them from taxes and expenses incident to our death, and with total privacy and as little delay as possible.

Consider proper advance planning as what it really is, a gift of our love to others. It is far easier now to put in place our own instructions when we are still far removed from disability and from death, than to procrastinate and trust our government and our legal system to guess what we would have desired to do if we become disabled and when we die.

It is also far easier now for us to title our assets as they should be titled, and to designate proper beneficiaries of our assets that will pass by contract, than to put our loved ones to such a task in event of our disability or when we die.

Many of our clients ask us to help them in every legal way to protect their loved ones and their estate from what they consider an increasingly socialistic government system, and from what they perceive as a morally corrupt court system and morally corrupting legal profession. We strive to do that for clients