This article was originally published in the Union Leader and can be found here.
NH Legal Perspective: Estate Planning Check-up Time
By: Brad Cook
June 29, 2019
Among the items on most people’s “I know I have to get to that sometime” list, is doing estate planning.
It is common for people, even those in their 50s and 60s, to procrastinate in getting this done, for a number of reasons, including cost, time and aversion to the topic involved — namely one’s mortality. Likewise, it is cause for relief when the job finally is finished and the estate plan not only is written, but is signed.
This serves as a gentle reminder to those who have not yet done this to do so, since it is a service to one’s family to get it done. Also, for those who have done the initial part, consulting with an attorney and getting the documents drafted, this also serves as a push to get back to your lawyer, answer the questions about how to fill in the inevitable blanks in draft documents, and get them signed. Unsigned documents are of no legal validity, and it is unfortunate when someone passes away with clear intention expressed, but not implemented with signed documents.
The point of this article, however, is to point out to those who have accomplished all of the steps mentioned above, that from time to time, it is necessary to review and update estate plans. Estate-planning law is covered by the state where a person lives (i.e. is domiciled).
While documents valid in the state are valid in another state if the person moves, the law of the state to which a person moves can be very different in regard to estate taxes, amounts exempt from taxes, probate requirements, rights of heirs, etc. People who move not only should investigate the laws of the state to which they intend to move, to see what the effect will be should they die in the new state, but also should have estate-planning documents reviewed and updated in the new state as required.
Keep up with changes
Also, and most basically, those not moving also should review their estate-planning documents periodically, as personal circumstances change. Children grow up, marry, and often qualify as fiduciaries as they mature. Fiduciaries named in estate planning documents move, divorce, get older and die, so documents need to keep up with these changes. Family wealth changes and may need to be reviewed for tax considerations.
State laws also change. For New Hampshire people with estate plans prepared here, there have been a number of changes in the law affecting typical estate-planning documents that suggest review of these documents, if they were not prepared relatively recently. Representative of the changes are:
Health care advance directives under NHRSA 137-J previously had a question in them regarding the provision of “artificial nutrition and hydration” being provided, notwithstanding the election by a principal to allow an agent to decide not to start or to remove life-sustaining artificial support. This question has been removed from the statutory form. However, since our law states that if a principal vocalizes an objection to treatment, notwithstanding the activation of the health care power, a medical provider is not to give the treatment directed by the agent, unless the document states that the principal wants directions to be followed, the following new language has been added to the form we use, and that which is used by many others. The new language is as follows:
“B. TREATMENT AGAINST OBJECTION
You may want your agent’s decisions to be honored, even if you vocalize an objection to those decisions. In this context, please consider the following statement. (Initial beside your choice of (a) or (b).)
_____(a) Yes, if I am incapacitated, and I object to treatment, treatment may be given to me, against my objection, if my agent authorizes it.
_____(b) No, even if I am incapacitated, treatment may not be given to me against my objection, even if my agent authorizes it.”
Including this language makes many health care organizations much more comfortable in accepting the documents, since many have encountered circumstances in which a patient vocalizes an objection, knowingly or not, and the health care organizations have felt compelled to seek judicial review of the situation. People with forms without this language included should have their documents updated, even though the existing ones are still valid.
Another change in the law allows waiver of full probate administration in certain cases, such as when the same person inherits under a will and is the sole executor, or the executor and sole trustee who inherits everything under a will are the same person. Individuals may want to review their documents to see if it makes sense to change their fiduciaries in order to qualify for this simplified treatment.
In short, it is important to have a signed estate plan — and it also is important to make sure it is up to date!