Clients often ask me how often then should update their estate planning documents. The common estate planning documents are a last will and testament, a financial power of attorney (commonly referred to as a “power of attorney”), and an advanced health care directive (commonly referred to as a “living will”).
When I use the phrase “estate planning documents,” I am not talking about planning for the super-wealthy. When people hear the phrase estate planning, they think you are talking about something that the elite 1% engage in, not the common man. This is untrue.
Estate planning is any type of legal planning concerning disability planning (power of attorney/living will) or planning for the disposition of your assets (a Will). The rich, the poor, and all of those in between should have a properly drafted estate plan. The rich may need a more complicated and complex estate plan than the not-rich, but everyone needs a plan in place in the event of their passing or in the event they can no longer make decisions for themselves due to disability.
It’s not easy to talk about your estate planning. No one wants to think about the day they will die or the day they can no longer handle their affairs. There may never come a day when you cannot handle your affairs; you may be perfectly capable and competent right up to the moment of your passing.
But you never know, and if you plan with an attorney experienced in these matters, putting a well-drafted plan in place can be quick and easy. Planning with the right attorney means that you won’t have to dwell on this unpleasant issue for very long, yet the plan will be there when you or your family needs it to be.
How often though should you reevaluate your estate plan? Does a Will become too old? Does a power of attorney or living will become too old?
Unless your Will was drafted before 1980, I recommend that you change your Will only if there is a change in your circumstances. For instances, if you change the people to whom you are leaving your estate, then you need to change your Will. If you change your mind as to who should serve as the executor of your estate, then you need to change your Will.
The passing of time, in and of itself, does not warrant a new Will. A change of address also does not equate with the need to draft a new Will (or any of the estate planning documents for that matter).
I say that if your Will pre-dates 1980 you should have a new Will drafted because most Wills drafted before 1980 were not self-proving, meaning that the signature of the individual making the Will was witnessed by two people and all of the signatures are notarized. If a Will is not self-proving then the executor must find one of the witnesses to the Will in order to admit the Will to probate.
With powers of attorney and living wills, I believe that the passage of time does warrant your having to draft new documents. I recommend that powers of attorney and living wills be updated every ten years, even if you are naming the same individuals to make financial and healthcare decisions for you in the event that you cannot make those decisions for yourself.
With healthcare decisions, there is always the chance for someone to claim that a living will fails to reflect your current preferences if the document is very old. For instance, you may have signed a living twenty years ago and someone could claim that the old document fails to reflect your current wishes with respect to your health.
With powers of attorney, banks often impose arbitrary timeframes on how long the document is effective. The workers at the bank might say they don’t honor powers of attorney that are older than one year or five years or some other arbitrary number of years. There is a provision in the power of attorney statutes that permits banks to refuse to honor powers of attorney that are older than ten years, so I recommend updating powers of attorney every ten years.