As estate planners, we encourage proactive planning and documenting of wishes in a well-thought-out environment.

However, as death approaches, especially when an individual enters hospice or reaches the final stages of a serious illness, family members and friends often begin to wonder if their loved one's affairs are in order and whether assets will truly transfer as they intend. Many assume that nothing more can be done in those final months, weeks, or days. In reality, there may still be opportunities to review asset ownership, clarify intentions, and take steps that can make administration easier after death. Consulting with an estate planning attorney prior to death can help individuals and their families understand these opportunities and give them a chance to tie up loose ends.

Asset Review

A good starting point is to review what the individual owns. Specifically, an estate planning attorney can examine:

1. Where the asset is held;
2. How the asset is titled legally;
3. The value of the asset; and
4. Any named beneficiaries for the asset.

Understanding how the assets are owned and designated allows our attorneys to determine which assets may be subject to probate - the Court process involved after a death, where the individual's Will must be presented and administered to properly transfer the assets to the intended beneficiaries - and which assets may transfer automatically outside of probate through beneficiary designations, rights of survivorship, or trust ownership.

Clarify Intentions

i. Updating Estate Planning Documents

An individual's mental capacity often determines what planning options remain available. Even when a loved one is in their final stages, they may still be able to update estate planning documents if they have sufficient mental capacity. For this reason, families should seek legal advice as early as possible to ensure their loved one's wishes are well documented. Once capacity has been lost, more limited options may exist.

ii. Utilizing Financial Power of Attorney

In the event an individual no longer has the mental capacity to update estate planning documents, families should determine whether a valid financial or general power of attorney (GPOA) is in place. A GPOA is a powerful document that can and should be reviewed and utilized by the named agent anytime the principal (the person signing the financial power of attorney) is ill, incapacitated, or dying. A properly drafted GPOA may provide opportunities to address certain financial and administrative matters by granting the agent certain powers that may include the ability to pay bills, deal with bank accounts, sign tax returns, and update beneficiaries on certain assets. An agent under a valid GPOA may have the power to carry out certain actions that will help ensure financial assets align with the individual's wishes.

Example: Mother Mary named one of her three sons, Sonny, as her agent under her GPOA. Mother Mary is now in her 80s and has entered hospice. Sonny can utilize his GPOA powers to help Mother Mary continue paying all of her bills. Sonny also reviewed Mother Mary's assets with her attorney and realized one of her bank accounts was jointly titled with rights of survivorship, meaning the account would pass only to the surviving account owner upon Mother Mary's death if no action was taken. This was contrary to Mother Mary's wishes as reflected in her estate planning documents. Because Mother Mary's GPOA specifically authorized Sonny to create, change, or terminate rights of survivorship, Sonny was able to work with the financial institution to modify the account ownership so that, after Mother Mary's death, the account passed according to Mother Mary's wishes.

Additional Steps to Simplify Administration After Death

In addition to reviewing asset information and clarifying intentions, steps that may help simplify administration after death include:

• Locating estate planning documents
• Organizing account statements and financial records
• Creating a list of online accounts and digital assets
• Coordinating with financial advisors and accountants
• Gathering passwords and important records

Contact Us

Every situation is different, and planning options often depend on the individual's mental capacity, existing estate planning documents, and the type of assets involved. While proactive planning may be preferred, even in the final stages of life there may still be opportunities to simplify administration and ensure an individual's wishes are carried out. Consulting with an experienced estate planning attorney as soon as possible can help identify these planning opportunities before they are lost.

Contact our office for more information or to schedule a conference to explore what options are available to help tie up loose ends.