As an estate planning attorney, I spend most of my time working with parents of young children who want to ensure that if something happens to them, their kids will be taken care of. And while that is very important, it is equally important for people to think about protecting themselves in the event that something happens to their parents. Think about it, if your parent passed away tomorrow, is there a plan in place for management or distribution of their estate? And if there isn’t, who is going to be the person who has to step in and figure it all out? Chances are, it could be you.

Due to the recent pandemic, which disproportionately affected seniors,[1] I received a number of calls from people whose parents suddenly passed without an estate plan, wondering what to do next. In cases where the parents owned any real property (or assets worth more than $166,000), and that property was not in a trust, the only option was to open a probate. Anyone with experience dealing with a probate knows that this is usually the least favorable option – as probate can be lengthy (sometimes lasting years), expensive, time consuming and is a public process.

In addition to the hassles of probate, lack of an estate plan can lead to family squabbles over who should get what, or who should be in charge. Invariably, there is a sibling who feels that they are owed extra because they did more to help the deceased parent. Conversely, there may be a sibling who had no little or contact with the deceased parent, and the other siblings believe that person should not be entitled to an equal share. Or there is a conflict over the inheritance of family heirlooms. The disputes are endless.

Another important thing to keep in mind, is that once your parents begin to lose mental capacity, they will be unable to execute legal documents. I regularly receive calls from people whose parents have dementia or other cognitive impairment, and the children need the parents to execute a power of attorney so that they can help take care of them. But it’s often too late because the parent is too far gone to be able to legally execute a document. At that point, the only option may be to petition the court for a conservatorship – which can be expensive and time consuming.

In order to avoid these issues, everyone should have a conversation now with their parents to make sure that a plan is in place to address incapacity and post-death estate administration. The goal is to ensure that your parents’ assets are passed on to heirs privately, in accordance with their wishes and without any court involvement. If your parents own real property, make sure that it is either in a trust, or held in a business entity with a clear succession plan. If they have retirement accounts and/or life insurance, make sure that there are beneficiary designations and that they are up to date. If there are family heirlooms or other assets that might cause disputes between heirs, have your parents state their wishes regarding inheritance in a will or trust. If a child is caring for a parent with the understanding that the child will be later reimbursed from the estate, make sure everything is well documented.

Even if you feel like your parents are in good health, it is never too soon to have these conversations with them, because it will protect you in the long run. We’re here to help. Please reach out if you would like to schedule a consultation to discuss further.

[1] As of March 31, 2021, the vast majority of deaths in the United States due to COVID-19 (449,600 out of 533,291) were of persons 65 and older. https://www.statista.com/statistics/1191568/reported-deaths-from-covid-by-age-us/