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Saturday, March 22, 2014

"Can I" vs. "should I"

When I take a look at reader's comments or take questions from the audience at a seminar, I notice that most people start off with the words "can I". For example: Can I add my kids' names to my cabin? Can I disinherit one of my kids? Can I leave everything to one child and allow her to distribute the estate as she sees fit?

This is problematic for me. I could answer each question simply with "yes". After all, each of the scenarios suggested is legal. Each can be created by signing the appropriate paperwork. Yes, you can do it. But I wouldn't be doing anyone a favour by just answering the question asked. What I need to do is answer the question they should have asked.

In estate planning, as in every area of law, the question is never "Can I do this?" The question should always, without exception, be "Should I do this?" Every decision you make should be considered in the context of the risk to you and to others, as well as the probability of the decision achieving the goal you wish to meet. You must always take the context into consideration.

Let's look at the example of adding all of your children's names to your cabin. Yes, you can do this by changing the title. It's easy, cheap, and quick. But should you add all of their names to your cabin? Will they be able to agree on what maintenance and improvements need to be done, and who is to pay for them? Will the children who live further away and can't (or don't want to) use the cabin as often have a problem with paying tax and insurance on a place they don't use? What if one wants to sell and the other doesn't? Are you aware that as joint owners, the last surviving child will get to leave the cabin to his or her children, while the others cannot?

Think about why you want to put all of the children's names on the title. Most likely, it is because you want to treat them equally. While that is certainly a worthwhile goal, there are probably better ways to achieve it than to put everyone's name on every asset.

The idea of context, or "the big picture", is extremely important in estate planning. Time and time again, families are taken unpleasantly by surprise by big tax bills, inexplicable wills, unexpected beneficiary designations, and home-made estate planning steps that cause more problems than they solve. It really is worth the time and money to spend an hour or two talking through your situation with an experienced estate planning lawyer to find out your options. Ask for ideas. Expect straightforward dialogue and feedback. You might also talk with a trusted financial advisor or accountant who knows your full situation.

Once or twice, I've heard someone ask why lawyers don't simply give a yes or no answer. The reason is, you're not asking the right question.

1 comment:

  1. Our 90 + year old father recently passed away. He left 4 of 9 adult children out of his will. The 4 are planning to file a C1 & C2. Can you offer any advise on how to proceed?


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