THE WILL IN THE DRAWER AND OTHER DISASTERS -
TAKING THREE YEARS TO SIGN A WILL - THE TRIUMPH OF THE UNCONSCIOUS
By the time people come in to see us to create or change their estate plan, they already know it’s important to do so. Often a baby was just born into the family. Sometimes a relative just died and the mess caused by inadequate planning made it clear that carefully crafted trust structures and appropriate plans are vital to protect the family.
It’s like paying taxes. All responsible people do it, all responsible people tell themselves they should do it early, all responsible people grit their teeth and eventually get it done. But there is one major difference: with taxes, you have an absolute deadline. With preparing your estate plan and related structures and documents, there is no deadline set in stone. So finishing up can be delayed. And usually is…
In our office we used to think that we were doing something wrong. We would finish up the documents, integrate in the various changes desired by our clients, send them finals drafts for their final review before execution…and would hear nothing for months. Sometimes for years. In one case, for eleven years. The clients had paid our bill. The clients had the final documents ready to sign. But, somehow, nothing would happen and the documents would just sit there.
Then we read an article in the Bar Journal which reported that the average Californian takes almost three years between finalization of the estate planning documents and actually signing them. It is a common trait among modern Americans that they delay not the creation of the documents or paying for the documents-but finalizing them.
It can be catastrophic. In two cases clients of ours neglected to finish plans sitting unsigned in their desk drawers and ended up with plans that did not reflect the current goals of the family. Instead of the newly created plan, earlier trusts without all the assets placed in them were thus imposed, one ten years out of date. In another case, the failure to execute the finished documents resulted in a Will contest that lasted years and cost our client’s family over two hundred thousand dollars. It matters. It does no good to prepare the documents…then fail to sign them.
Intrigued by this oddity of human nature, and realizing that to serve our clients we had to discover what was the problem and resolve it, we decided to research the phenomenon and take this means to share our conclusions with you.
It may not apply to you. You may be one of the ten percent who handle this type of project in an entirely businesslike manner. But if you are tempted to slip the documents into a desk drawer at home, please first read this analysis.
Death in Modern America:
Few people enjoy considering mortality but up to perhaps a hundred years ago, the mortality rates were so high and death among the young so common, that death was a constant part of American life. Indeed, the front parlor in most homes was called a parlor precisely because it would occupy the role a funeral parlor occupies today. Families did not use commercial funeral parlors. Bodies were prepared at home, the service was at home and at the cemetery, and grandparents, uncles and aunts were buried with the next generation intimately connected with the process and looking on from the front room of the family home. Death was a constant and intimate event in the family.
When life expectancies were in the low sixties, which was the case well into the 1960’s, most people would attend a funeral of a relative every third or fourth year, and it was understood that one worked until one was within four or five years of death and then one died. An immediate task upon retirement was making plans as to how to handle the myriad issues involved in imminent disease and death. It was what each family had to confront and plan since in those days most elderly lived at home with younger members of the family who were expected to care for them and arrange their funerals.
Today, most elderly live apart from their children, often in various types of care facilities, and the entire process of illness and dying is handled by “professionals,” from the last months in the hospital or hospice to the funeral and probate. Death is not confronting the younger generations as a constant and familiar part of life. It is a matter to be referred to the professionals who do it for a living.
Many excellent works have been written about the modern tendency to deny aging much less death, the worship of the “youth culture” and the avoidance of the unpleasant aspects of increasing age and ultimate death. The concept of the elderly providing a vital part of the wisdom a society needs has been diluted by a culture that feels that most inventiveness ceases after age forty, that vast amounts of information are readily available on the internet thus the wisdom of the aged is not important and, indeed, that the aged are usually out of touch with modern developments.
The elderly are often ignored or viewed with fond contempt. Death is treated as an unpleasant event that happens to others and certainly not a matter requiring immediate plans absent a death sentence from a doctor.
This trend has been combined with longer and longer life spans. Most people fail to realize that the average person today lives nearly fifty percent longer than their grandparents did and that the average person in the Western world will likely live well over a hundred years by the next generation. Life insurance companies have just upped their life expectancy tables for computing premiums and many people are retired for more years than they work and enjoy medical care that delays or eliminates the common obvious illnesses of aging.
Which allows all of us to pretend that aging and death is something to be ignored. Put the Will and Trust in the drawer…you may never need it.
The Fallacy of Estate Planning:
You are going to die. So is everyone you know. Drafting a Trust and/or Will will not make that happen.
Napoleon made a comment to one of his generals once, looking out over the million men that were marching into Russia with him. “Look at them. Think. In fifty years everyone in sight will be dead. Including you and I. All the people we know will be dead in a hundred years. Each century or less the world renews all the humans.”
That’s the fact of life many find hard to face.
Planning to help your family surmount the confusion, sadness, turmoil, costs and taxes of death is part of your family duties and one reason you are doing your estate plan. It helps your family and makes the passing all the easier and can save a great deal of money in probate costs and taxes.
It does not speed up your death.
Psychologists discovered to their surprise a widespread emotive response among many people that finalizing the Will or Trust is equivalent to signing a death warrant. This is not conscious and, indeed, in the surveys, people laughed at the idea. But the studies showed that people become increasingly concerned with death and dying and routinely lowered their own estimates of life expectancy when engaged in estate planning…and after signing the Trust and Will.
So…with no deadline facing them, myriad other things to worry about, they put off the final execution of the documents. They pay for the documents, know that they are ready to sign…but somehow never get around to it. More often than not.
Thinking About Death:
Ever think about planning how you will age and die?
Why not? You planned your career. You planned your marriage, your family. You plan your vacation. You plan how to pay taxes, how to pay debts, how to invest your money.
But most people glance a moment at the issues of aging and dying and their minds quickly race away from that grim topic. The great mathematician and philosopher Blaise Pascal noted that and commented that the great truth of our existence is that it will end…but that truth is so frightening to contemplate that we fill our lives with transient pleasures and obligations to keep the larger truth at bay. Perhaps. Or perhaps death is something that one confronts only when one must and that reaction is necessary to keep doing the day to day obligations we all have.
Our office has to deal with death and dying all the time. We have written numerous articles discussing practical methods and planning (Elderly Care, Living and Dying Preparations; Living Wills; Euthanasia) and we have in depth stories of the remarkable..and at times destructive…confrontation with death and planning of death that clients and colleagues have demonstrated. See Adverse Possession and Glory; The Compatibility of Law and Justice; A Glorious Death, a trilogy of such stories on the articles page of our website. There are lessons to be learned from those who have walked this path before. All of us will walk that path and the stories above should make you stop and think about what it means and what you should do.
But it all comes down to this: planning your estate is something you have to do. Starting and not finishing is not estate planning-until the final signature is on the page, you have not accomplished the goal of why you are here.
Moving Right Along:
You are doing the right thing by planning for your estate. Your immediate family…and heirs now unborn…are being helped by doing this. You have decided to face unpleasant possibilities and do so in an effort to make life easier for those you care about.
Keep at it until the final document is signed.
And if, in several months, you open a drawer in your desk and suddenly see the packet from our office sitting there in a thick envelope…remember this Memo and open the envelop…and finish up the task. Not only will you not die because you finished up your Trust and Will-you will feel much better having done that duty for your family.
Whatever we can do to help you finish this up, let us know.
These Articles are to give the reader a general description of certain areas of the law. Legal advice is necessary to apply these legal concepts to your particular situation. The Reader should obtain competent legal advice before relying on the Articles.
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