An Estate plan is a living, evolving creature that will inevitably grow over time to accomplish an individual’s pre-death and post-death goals. “Plan” is defined by Merriam-Webster dictionary as “an orderly arrangement of parts of an overall design or objective.” When I begin working with a new client, this is how we approach the situation. We work with them to develop the necessary parts to achieve their overall objective for their estate. This may include the drafting of Financial Powers of Attorney, Medical Directives, HIPPA Release forms, Wills, Revocable and/or Irrevocable Trusts, and other various planning documents.
Time and time again, I am presented with situations from clients whereupon “partial” estate planning was commenced. Sometimes, I am able to complete that estate plan with the individuals who are competent and still living. However, issues arise when the individual for whom planning was not completed is either incapacitated or deceased. Intent and wishes of an individual are often not enough to govern without being reduced to a signed and witnessed writing.
Take for example a recent case in New York, whereupon Walter Scott Bruan and Piyavan Chantarasmi entered into a premarital agreement in 2002, which specifically detailed how their respective estate plans would dispose of their property upon death. See Matter of Bruan, 938 N.Y.S.2d 762, 2012 N.Y. Misc. LEXIS 302, (2012). Subsequent to signing this premarital agreement, no Last Will and Testament was ever executed by Mr. Bruan. Mr. Bruan then passed away in 2009 intestate (i.e. without a Will). The question for the Court in this matter was to determine if disposition of Mr. Bruan’s assets could be accomplished pursuant to the premarital agreement, despite the absence of a testamentary document. In its decision, while the Court honored several provisions of the premarital agreement, The Court itself was left to develop the terms of the testamentary disposition to be imposed.
The moral of this story is that Walter Scott Bruan and Piyavan Chantarasmi merely scratched the surface of creating an estate plan. While the parameters of an overall design or objective for their estates was outlined in their premarital agreement, neither took the steps to implement the plan by completing the necessary estate planning documents to do so. As a result, the surviving spouse, Piyavan, was left to the mercy of the Court to determine the disposition of her husband’s estate. Don’t allow this to happen to you. Be proactive in your estate planning and realize that it is a multi-step process evolving over your lifetime, which needs to be reviewed, updated and amended throughout.
- Gary Altman, Esq. and Adam Abramowitz, Esq.