Estate Planning: Wills, Trusts, and… What’s an Advance Healthcare Directive?!

Two phenomenal people recently became clients after their financial planner referred them to me. They’d had an estate plan put together several years ago by an attorney, and they wanted to update it a bit due to some changes in life that had occurred since then. (Updates are fine and are easy to accomplish, so long as the documents haven’t yet become irrevocable – more on that in another blog post on another day.)

When they showed me what the attorney had prepared for them, I was frankly shocked at how little he had done for them. The “estate plan” he had put together lacked even the most basic documents and, had I not fixed it all for them, would have done very little for these poor people’s adult kids in the event of their passing. I’m sure the lawyer was well intentioned, but he obviously lacked an understanding of what comprises an effective estate plan.

Now, I’m not saying that their estate plan would have been ineffective because it wasn’t overlawyered and didn’t contain documents that were extraneous and unnecessary; rather, I’m saying that it didn’t even contain many of the basic legally-required tools that must be present to ensure an efficient and effective transfer of rights and assets from the parents to their adult kids after the parents pass away. For example, just because you’ve signed a revocable trust (also known as a “living trust”) doesn’t mean that you don’t need a will – quite the opposite: you DO need a will that works in conjunction with the trust. But, no wills had been done for these poor people, and without wills the assets that the parents left behind could have been subject to probate (the avoidance of which is one of the key reasons for having a trust).

It also lacked documents that would enable the kids to make health care decisions for their parents in the event the parents became incapacitated. Further, it contained an odd document that purported to be a very important document called an Assignment (which effects the transfer of title of assets to the trust), but the lawyer had kind of cobbled together a different document that probably wasn’t effective (and he had even given the document a name that applies in the context of an asset sale, not an estate plan).

What I’m getting at here is that it’s a great idea to occasionally check and re-check your estate plan. Things change, you have more kids who then grow up and have kids of their own, and your estate plan needs to keep pace. An added benefit of asking a knowledgeable lawyer to help you is that the lawyer might even spot legal issues that need to be rectified in order to protect your family.

Let me know if you have any questions about estate plans, whether you want to form yours or if you want to make changes to one that you already have.

Greg Borman is an attorney in San Diego, California, who enjoys helping people through the complexities of our legal world. In addition to estate planning, he advises and represents businesses of all sizes and stages, as well as their owners.  He can be reached at or at (858) 232-7100.

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