There are a lot of ways to do estate planning wrong, and more than one way to do it right.  But, there are certainly more ways to make mistakes in an estate plan, and some of the mistakes I have seen have been downright silly.  In a previous blog post, I wrote about people who wait too long to start an estate plan.  In this blog post, I am going to talk about people who rush their estate plan, and how that can cause problems.  Both of these would seem like simple problems to avoid, but some of the ways these happen just make me laugh.

 

 

Don’t Wait Too Long to Start Your Estate Plan, or You May be too Rushed to Get it Right!

I sometimes take calls from people who have relatives in the hospital, or even in the ICU at a hospital, asking me to come out and meet with the relative in the hospital that day or within a day or two, so that the person in the hospital can complete a will or other part of an estate plan.  Based on my current schedule and availability, or lack thereof, I tend to turn down these types of opportunities at this point.  I just cannot get to the hospital on such short notice while I am serving clients who have pre-scheduled their appointments.  In the past, I have had clients who have needed me to go to the hospital to get things done, which has usually worked out just fine, but it does make for a rush, and rushing never seems to give the best outcomes.

A few years back, I had someone who asked me to go visit their relative in the hospital.  I went to visit and was able to talk to the person, even though they were in the ICU, and had been unresponsive the night before.  Apparently the person had recovered enough to be awake and alert when I went to visit the hospital.  We discussed the person’s life situation and I drafted an estate plan for this person.  I went back to the hospital later that day and got everything signed.  The person then passed away later that day.  One of the named beneficiaries in the estate plan was not happy with how the estate plan distributed assets and challenged the estate plan.  The challenge included asking about how the person could possibly have understood an estate plan if they were non-responsive.  I explained how the person was alert and responsive when I met the person, but the medical records may not have documented the change in the person’s mental status between the night before and when I met the client..

As much as we would like to think that doctors and nurses are constantly monitoring patients, there is sometimes a lag in recording interactions and statuses of all patients, all the time, and this person’s chart had not been updated to include a notation that the patient was awake and alert when I met with the person.  The doctors had noted the patient was non-responsive the night before, but not updated the status on the chart the day I spoke to the person.

In retrospect, I probably should have had a doctor examine the person to show they could understand the estate plan, but we were all moving so fast to get the estate plan done that we were just trying to get it completed. Our focus was not to ensure the doctor’s notes were up to date at the time we spoke.  I was able to testify that the person was lucid and could understand what was happening, and the estate plan was upheld, but the last minute nature of doing the estate plan caused a rush and could have created an undesirable outcome had the rush resulted in something being done incorrectly.  Fortunately this was not the case for this matter, but rushing an estate plan can certainly open the door to errors and omissions not noticed in the rush.  Rushing an estate plan is just not what anyone should do if the goal is to get the estate plan right.

 

Last Minute Planning Doesn’t Always Work Out

I also frequently have people who call me because they are leaving on a vacation in a few days, or a few weeks, and they want to get their estate planning done prior to leaving on the vacation.  If I have time, I am happy to help such people, but I often am not able to fit someone in at their last minute.  When I tell people that I am not able to see them before the vacation, many will ask if there is something temporary that they could do before the vacation, and then meet with me after they return.

I am not sure if these people are hoping there is some sort of temporary will or trust, or some other stop-gap measure to handle an estate plan, but there really isn’t such a thing contemplated in the law.  The law does allow you to write your own will, having the material provisions in your own handwriting, sign and date the will, and have the will be valid.  This is what is known as a “holographic will.”  A holographic will can be a temporary measure, but it is also not able to be proven in the same way a properly written will or trust can be proven.  In the ICU story above, we had witnesses to the person signing the estate plan and a notary who could testify that the person who signed the estate plan was capable of signing and understanding what they were signing.  A holographic will just doesn’t have the same evidence to support the will being correct and valid.

I have also had people ask me if they could create a will though an online platform, and I tell those people they are certainly welcome to do so, but that online will creation services are somewhat limited in what can be done.  I can agree that something is better than nothing, and that doing something online can usually work out better than nothing, but I cannot endorse any particular online service, as I don’t know the legal background or validity of online documents.  I don’t know of any online platform that went to law school or knows and distinguishes Colorado law from other states.  I also have people ask me about using an AI (Artificial Intelligence) service to write a will.  As of now, I don’t have confidence or trust in any AI program to tell anyone to use AI to write an estate plan.  I am sure the AI programs will improve in the future, but we are not there yet, in my opinion.  I have had potential clients send me something they generated using AI, and I see so many errors and problems that I have remarked I would be disbarred for writing a will the way the AI did.

Of course, I am an attorney, not an AI program, so I am responsible for the work I do, while an AI program isn’t held to the same standard.  I am sure AI will improve, and potentially even replace part of what I do, but the technology hasn’t yet arrived at where it needs to be, and relying on unreliable technology isn’t the best idea.

Planning Ahead Just Works Better

Planning ahead, instead of waiting until the last minute is a far better approach.  Instead of scrambling before a vacation, or when entering a hospital, you can plan your estate plan while you are healthy and happy and have the time to devote to thinking about what you want to do.  When you establish your estate plan in the relative calm of life before a crisis hits, you will have the time to carefully consider what you want and need, and you will be able to avoid the problems associated with rushing.  Then, when you go on vacation, or need to go into the hospital, you can know you are ready for whatever comes your way.  If you would like to start planning ahead, please use the button below to make an appointment with me to get started on your estate plan while you still have plenty of time.