When the estate plan changes late in life

How to keep financial changes safe from challenges

• Make sure all changes are done with full consent, and that a power of attorney is in place in case consent cannot be given.

• Involve lawyers and/or financial advisors, as well as other unbiased witnesses.

• Keep lines of communication open with family and other beneficiaries so they are informed.

• Maintain excellent records, and lean on your team in the knowledge that late changes are totally normal.

The days and weeks before a loved one passes away can be a terribly challenging time. There is so much to be considered: medical needs, caretaking, spiritual desires, and time with friends and family. Often, you can experience real grief, even if it seems premature, along with a whole host of other emotions.

Your loved one’s estate plans are just another piece of this puzzle—one that may require some changes up until the time comes to say goodbye.

There are many different reasons that a will (or other estate planning instruments like trusts) might change close to someone’s death. Recent births or deaths could affect beneficiaries. Your loved one might get new advice from a lawyer or accountant about shielding assets. Or the current plan might not cover recently acquired assets. All are normal and well-accepted grounds for altering the estate plan.

However, the closer your loved one gets to their final days, and the closer their plans are to being set in stone, changes to the estate can become more complicated. Often, this is because consent, desires, and interpersonal relationships commingle and create complex situations for families and estates. Legally, either your loved one must be of sound mind when making these decisions, or the person with power of attorney can make changes—but even these elements can get sticky in certain circumstances. 

However, with a good team in place and careful precautions taken, you can assure your loved one, yourself, and your family that the estate will be well taken care of after they’ve passed.

Make sure power of attorney is in place

A durable power of attorney (POA) allows one person, usually a spouse, child, or other immediate family member, to act as an agent to make decisions on behalf of someone who is not cognizant enough to make their own financial choices. The rules of what the person’s agent can and can’t do for them vary by state, and may also depend on the specific wording of the agreement.

One general guideline remains the same: The agent must always be acting in the person’s best interest. If there is any doubt that this is the case, problems can arise during probate or when settling the estate.

Communicate and make group decisions

One way to avoid disputes later on is to maintain open, honest, and transparent communication during this delicate time. If your loved one is capable, they can choose to update family members on any changes, major or minor, that they’re making to their estate plan. Conversations about these topics can be difficult, but having them when the your loved one is there to provide context will avoid confusion later.

If your loved one isn’t able to make decisions for themselves and has a POA, it is advisable for their agent to keep an open line of communication with family members. The agent is under no legal obligation to consider the opinions of anyone except your loved one, but it can still help avoid conflict to come to an agreement as a family about what’s best for your loved one.

Involve an unbiased party

Estate lawyers and financial advisors can (and probably should) play a key role in making any changes to the estate plan. Their recommendations are typically based on an understanding of how the probate process works, and they’ll have an unbiased perspective about the best way to deal with your loved one’s property and assets. 

When speaking to a professional about the estate, your loved one or their POA agent might learn about more direct or efficient ways to distribute their assets. Or they might realize they have assets that weren’t included in the estate plan that should have been. Changes like this are common, especially if a lawyer was not previously included in the conversation. Changes made based on a lawyer’s advice are also very unlikely to be judged as invalid by a probate court, which usually protects everyone involved and makes sure your loved one’s wishes are carried out.

Always have a witness 

You can also choose to have a witness present for discussions, document updates, and other changes to the estate. In some situations, such as changes to the will, a witness may be required. In either case, this person should not be an involved party or have any vested interest in the affairs of any involved party (for example, a spouse of a beneficiary should not be a witness, as they could stand to benefit from their inheritance). 

If there are any disputes later about the validity of the will or other estate documents, a witness can be called upon to testify in a probate court that your loved one was fully consenting and of sound mind when the decision was made.

If there’s a dispute

There is always the potential for a family member or beneficiary who does not agree with the changes to bring a claim in probate court, saying that things were changed without your loved one’s full consent. If you’ve followed the guidelines above, you should be well equipped to prove to the court that the changes were valid.

Lean on the team you’ve established: lawyers, witnesses, and other family members who were involved in discussions, along with any official records you have. Keep in mind that this can be an emotionally charged time for everyone—if someone feels slighted in their inheritance, it can lead to hard feelings and lasting conflict. In order to keep things civil, try to keep the conversation focused on honoring your loved one’s plan, and leave your own views on anyone’s behavior or interpersonal relationships out of the discussion.

Ultimately, changes to an estate plan are common, even right up to the time of a person’s passing. Use your best judgement; if you do think that someone is taking advantage of your loved one, bring that to their (or their lawyer’s) attention sooner rather than later. Otherwise, trust that your loved one is putting their best interests first, and respect those decisions. This is a hard time, and these are hard choices; what’s most important is to be there to support our loved ones and show them how much they’ve meant in your life ●