Change Is Good
Opinion Advocates for ideas and draws conclusions based on the author/producer’s interpretation of facts and data.
By Alan D. Feller
There are no stone tablets and chisels in estate planning. Charlton Heston will not be holding up your Power of Attorney for all to see. Estate planning documents represent a snapshot in time. If time and family dynamics cooperate, an estate plan can remain as is for decades. Often, things change.
Most documents that estate planning attorneys draft can be amended or revoked. Even Irrevocable Trusts have mechanisms for change called Limited Powers of Appointment, to allow the creator to alter certain aspects of the Trust through their Will. New York even allows for complete revocation, if all parties to the Irrevocable Trust agree in writing. Sounds illogical. It comes back to estate planning’s primary purpose – to allow an individual’s wishes to be fulfilled.
You chose Cousin Jack as your Power of Attorney in 2011. Over the last 14 years, Jack has spoken to you exactly 3 times. Twice was at Aunt Carolyn’s house, asking you gruffly to pass the peas. You thought the two of you were close. You were wrong.
Replacing Jack is a cinch. We draft a new Power of Attorney with your nephew, Tyler and send a terse letter to Jack, informing him that the old Power of Attorney has been revoked. Jack and his gruffness can go have a nice life.
Wills, Health Care Proxies, Powers of Attorney, Living Wills and Revocable Trusts can be revoked at any time by the maker. Wills and Trusts can also be amended (codicils for Wills, amendments for a Revocable Trust). This means that you can change one or a few provisions of the document and leave the rest intact. Cousin Jack was named as your executor under your Will. The Will still works in every other way, but Jack has to go. No problem. We draft a codicil, replacing Jack with your nephew, Tyler.
With change being so easy, there is no reason not to revoke a document that does represent your current wishes. We recommend that every year, you find your estate planning documents and read them over. Maybe, a listed health care proxy that once filled you with confidence now has you scratching your head. That off-hand comment she made to you about pulling the plug did not sit right. Time to call the attorney.
If you revoke a document and make a new document, make sure that you destroy the old one. Old Wills lying around cause problems. Your surviving loved ones may mistake an old Will for the Will you intended to have probated. Even if they know to probate the newest Will, the old Will may have favored one family member who is no longer favored – leading to bad feelings all around.
Don’t keep Jacks in your plan if they no longer fit your ideals. When the time comes to revise your documents, the professionals at The Feller Group, P.C. are available to guide you through your estate planning changes.
Alan D. Feller, Esq. is managing partner of The Feller Group, a law firm dedicated to the practice of elder law and estate planning, located at 625 Route 6 in Mahopac. He can be reached at afeller@thefellergroup.com.
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