Heritage recently sat down with Heritage Legacy Society member and estate planning attorney Mark James of Lancaster, Pennsylvania for advice on estate planning as well as his thoughts on why he’s chosen to remember Heritage in his own plans.
Heritage: Is there any advance homework a person can or should do before their first appointment with an estate planning attorney?
Mark: I give my clients a brief questionnaire to help them clarify what I call “The Three P’s of Estate Planning”: People, Property, and Plans. For “people,” you’ll need to determine who will receive the assets from your estate. It sounds simple, but there’s often more than meets the eye. I’ve had clients who had originally planned to divide assets equally among all their children, but after some prompting, realized that special safeguards should be put in place due to a problematic or spendthrift child.
Similarly, it’s helpful to take inventory of your “property” to estimate the value of your estate. Not only will it be helpful to your attorney in determining potential estate taxes, but it’s also important to know how your assets are titled, whether you own real estate in a different state, and what portion of your estate’s value is in real estate, retirement accounts, and financial assets for example.
As for “plans,” you and your attorney will need to determine exactly how your plans will be carried out. Who will serve as your executor? Are there charitable interests you’d like to take care of? All of this requires some consideration in advance.
Heritage: Increasingly, we’re seeing cases of estates being contested after someone’s passing. What can people do to protect themselves?
Mark: First, make sure you have an estate planning attorney you can trust, who respects your intent, and who will go to bat for you if necessary. I take my client’s intent personally and approach every estate plan as though it may be contested. For example, will contests tend to be based on the mental capacity of the decedent. The focus is on a person’s final days and whether their last will revisions are deemed valid. Using a revocable living trust, rather than a traditional will, can help defend against these kinds of claims. With a living trust, there’s more advance planning, including the retitling of most of your assets. It’s a lot harder for someone to prove lack of capacity or undue influence in light of such a systematic process.
To protect charitable bequests, I recommend letting the charity know you’ve included them in your plans. If your children are also part of your estate plans, you might want to let them know about your charitable intentions, too. Frankly, I think it’s a great idea for adult children to meet your estate planning attorney or someone from your charity. Particularly if you have children who may not be philosophically on board with your choices. It can go a long way toward preserving your intent and building respect for your wishes. It’s harder to label your attorney or charity as an adversary once you give them a smiling, human face. And in those cases where kids might have an affinity for your charity’s mission, planting the seed for a possible relationship down the road can be extremely gratifying!
Heritage: You’ve been practicing estate planning law for quite a few years. What are the most common estate planning mistakes you see being made?
Mark: Using a “one size fits all” will, like the kind you can buy online and fill in the blanks yourself, is at the top of the list. I’m reminded of an old television commercial that used the slogan “you can pay me now or you can pay me later.” I know it sounds self-serving to say this, but no matter how tailored they claim to be, template wills are no substitute for the advice you’ll get from an experienced estate planning attorney. Remember the previous question about how to protect your estate from being misread or contested? Drafting your own will could leave you and your intended heirs extremely vulnerable. And the legal fees to defend an estate are much higher than those required to plan one.
One other mistake I see being made a lot is the failure to integrate all of one’s assets into one estate plan. It’s another reason why having an experienced advisor is so important. Over your lifetime, you may have accumulated some assets that are owned solely and some that you own jointly with others. Some assets will pass through your will or trust, and others won’t. Qualified retirement accounts, are expensive assets to leave children due to their double taxation. Issues of ownership can get very messy if you don’t have all your ducks in a row.
Heritage: You’ve been involved in a lot of great causes during your lifetime, and yet you’ve identified The Heritage Foundation as one of the organizations most worthy of being remembered in your will. Why Heritage, and why now?
Mark: The birth of our first grandchild started me and my wife Heather thinking a lot more about this nation’s future. What kind of America will our grandson inherit? I believe there’s a direct correlation between Heritage’s work and the answer to that question. Heritage has what it takes to steer this country in the right direction, and everyone who cares about America’s future needs to step up and grab an oar.
In my view, supporting a charitable organization is a lot like investing in a company, and I have great faith in Heritage’s management. I’ve been supporting Heritage for many years, but ironically, it wasn’t until President Ed Feulner’s retirement that I realized just how solid an organization Heritage truly is. There are a lot of charities out there that are built solely around one leader. How a charity handles leadership succession speaks volumes to me. Heritage is far bigger than just one person, and the presidential transition from Ed Feulner to Senator Jim DeMint helped drive that home for me in a big way. How many sitting U.S. senators do you know of who’d voluntarily give up their seat in Congress on the conviction of wanting to make an even greater difference in America? It shows great integrity, but then again, that’s the kind of principled leadership that makes Heritage so exceptional.
For more information about estate planning and how to include The Heritage Foundation in your plans, please call (800) 409-2003 or visit myHeritageLegacy.org.