16 Lessons Learned: Estate Planning & Probate Practice

16 Lessons Learned: Estate Planning & Probate Practice

By Melinda Gustafson Gervasi

October 1, 2021

Today my practice is old enough to have its own driver's license -- #16!  Since 2005 I have been fortunate to counsel clients in my hometown of Madison, Wisconsin on issues related to estate planning and probate.  Today I pause to share 16 lessons I have learned while navigating my practice:

1. People often need a push to make the call to get on an attorney's calendar to complete an estate plan.  International travel and the arrival of a baby used to be the biggest nudges, then COVID 19 arrived to spur record numbers of people to take action and make a plan;
2. It is immensely easier to make decisions about who will do what and where assets will go when you are NOT also dealing with a severe illness.  Don't wait to plan until you have a stage 4 cancer diagnosis.  Sadly, it is the number one thing to prompt clients to call;
3. The type of estate planning vehicle (will versus trust) is less important than who you put in charge to handle your final affairs.  If that person is not the right person for the job it will be a mess no matter if you funded a trust or used a simple will;
4. Organized paperwork is a huge gift to leave your loved ones -- the greater the mess, the more they'll stress;
5. People think they know where their documents are until they need them.  Double check today to avoid a crisis in the middle of a crisis;
6. No one will be the perfect fit to raise your children if you die, but having no plan is far worse.  Aim for 85% in terms of a good fit and nominate that person(s);
7. We cannot really know how a person will  handle functioning as a health care agent or personal representative until we observe them acting on another's behalf.  You can always amend your plan if that person no longer seems to be a good fit.
8. Grief exacerbates family tensions.  There are two sisters out there who will never speak to one another again because of an armoire. But it really isn't about the armoire, it is about so much more that was never really faced;
9. Estate planning is about taking control of the "who" and "what", but not the "when";
10. Do not wait to travel until you retire. Tomorrow is not guaranteed;
11. We no longer memorize out loved ones phone numbers.  Write them down so they can be accessed when they are most urgently needed;
12. Family cabins and farms are not just pieces of land, they are a family member.  Plan accordingly;
13. You can lead a horse to water but not make it drink.  Sometimes you need to let the chips fall where they may and then get to work.  In other words, you cannot compel your loved ones to do an estate plan;
14. Leaving all of your assets to your "responsible" child who will "take care of the others" is a horrible idea, and one that may cause that responsible child a lot in gift taxes;
15. Laws related to estate planning and probate and state specific, unlike immigration, a federal law, that is the same from Maine to California.  Most people are not aware that what their sister in Maryland wrote may not be appropriate for one living in Wisconsin; and
16. People are compelled to use the same estate planning documents as their parents and grandparents even though their lives are drastically different. 

Bonus #17 -- In Door County, Wis there is a white fish known as the "Poor Man's Lobster" or Lawyer.  This sign is from Oct. 2009 when my family enjoyed a few days in the lovely area of my home state. 

Thank you for reading.  Remember that a blog is not legal advice, but rather a vehicle to spark thought and discussion.  Please consult an attorney in your state of residence for legal advice specific to your situation.