This post was guest written by a fellow lawyer and friend of mine, Brian Russ of Brian Russ Law, Inc.

Brian is a California lawyer whose practice focuses on business law, copyright and trademark acquisition, and small claims support. Brian’s firm is a virtual law firm, serving clients throughout the entirety of California, from Escondido to Alturas, and Los Angeles to San Francisco, and everywhere in between.

Prior to focusing mostly on business clients, Brian also practiced in the estate planning and probate fields. The purpose of this post is to share three common ‘war stories’ of nightmare scenarios Brian has seen arise in estate planning and probate cases as an instructive tool to let you know what to avoid.

Of course, due to attorney-client privilege and other confidentiality obligations, these scenarios are loosely based on real events, but actual events are changed to anonymize the parties involved. Additionally, my ethical obligations compel me to give you some disclaimers about this post. First, this post is not legal advice and is provided for informational purposes only and is not created for any specific person or situation. You should retain local counsel to help you with your situation. Second, your reading of this post does not create an attorney-client relationship between the author and you. Third, and finally, to the extent this post can be considered an advertisement, it should be considered an advertisement.

Now, on to the nightmare scenarios:

Nightmare #1 – No Plan At All

A common nightmare I see is the decedent had no plan at all. None of the affairs were in order, and the family is left scrambling to discern how the decedent’s life was managed. This situation is especially problematic if the decedent was not close to any relatives and somewhat disorganized in their life.

Usually, if someone passes away without an estate plan and leaves considerable assets, the estate will need to go through the probate process, which is generally at least a years-long process. I have seen probate cases near completion (and folks get excited about finally receiving an inheritance), only to learn that a five-figure debt exists that needs to be paid by the estate. Not having a plan at all is a nightmare scenario.

Nightmare #2 – Not Updating a Plan

Another common nightmare I see is that the decedent passed away, but did not update their estate plan they created a long, long time ago. This is especially problematic if the person married in the interim, had additional children, had fallings out with individuals, etc.

This is especially true if you set up an estate plan thinking your adult children will receive all of your assets, then you remarry later in life, don’t update your plan, and then pass away. Guess what happens? In many states, the new spouse is entitled to inheritance even though the estate plan never mentioned them! The legal theory is that the decedent would have wanted the new spouse to receive something, so the law apportions some of the assets to them.

Nightmare #3 – Not Being Truthful

The final nightmare is the nightmare of not being truthful with your estate planner. As a client, you need to recognize that your planner will only be able to write a plan as good as the facts you provide. If you omit details (intentionally or unintentionally), there can be disastrous impacts on your will or trust.

This nightmare can come up if you don’t disclose significant assets, relatives who may be entitled to a share of your estate, or other key details (like being married!). Many estate planners ask for significant detailed information from their clients because every detail likely has a material impact on the eventual estate plan.

Conclusion

Pretty much anyone who’s over the age of 18 and owns any stuff needs to have an estate plan. And setting up a plan is a selfless act, whether it’s just a simple will, or a will and trust, or a will and multiple trusts, likely will never benefit the person setting up the plan. It’s a way of helping your loved ones after you pass away.

So I implore you to help them not face a nightmare after your passing (grieving is hard enough on its own!). Make sure to have a plan, keep it updated, and don’t mislead your estate planning attorney.