Just 26% of Americans have any advance health care directive, according to a 2014 study by the American Journal of Preventive Medicine. And as a May 2016 Gallup poll reveals, only 44% have a will.
If you lack a written plan for incapacity or death, you expose your loved ones to unnecessary burdens, trauma and expense. If you become too ill to make your own health care decisions, they will have to muddle through, perhaps making life-and-death decisions for you without the comfort that comes from truly knowing what you would have wanted. Also, if upon your death you do not have a valid will or trust, all your assets that are not beneficiary-designated or held jointly with right of survivorship will be probated under Florida's intestacy law. Your failure to properly plan could end up shortchanging the people you care about and rewarding those you don't.
Why then do so many people fail to plan? Surely they do not love their families any less than the planners do?
The obvious explanation is that we humans are just naturally averse to thinking about incapacity and death. However, that is not the entire story. In more than two decades of working with estate planning clients, I have found that there is an equally compelling factor holding people back from making plans: uncertainty. It's uncertainty at work when clients say that their lives are just too unsettled to make any decisions. Estate planning attorneys hear this comment all the time.
Exactly what kind of certainty are people waiting for? What must settle down before people think they can act? Some say they are waiting for an adult child in a bad marriage to either get divorced or decide to remain in the marriage. Others say they cannot move ahead until their finances are no longer in flux, or until a piece of property is bought or sold. I have seen spouses put off their planning for years because in all that time, they have been unable to agree on who their beneficiaries should be and what each should get, or who to name as a trustee. When the federal estate tax law was being actively debated in Washington - as it will be again, no doubt - some said they were waiting for the law to be finalized. No tax law is ever the final word.
Uncertainty is uncomfortable. Certainty feels better. But certainty is elusive. If you delay creating an estate plan until everything is "settled," you could wait forever. And while you are waiting, if anything happens to you, you haven't done your family any favors. A good-enough plan that can be tweaked in the future if necessary, is a thousand percent better than an ideal plan that doesn't exist.
What many procrastinators fail to consider is that the structure of most estate plans is not set in stone. My law firm invites our clients to come see us for a complimentary estate review every three years in recognition that everyone's circumstances, and the laws, change over time.Occasionally I will suggest an irrevocable plan for a client with particular needs, but the average client's plan is designed so it can be modified as family circumstances, finances and health issues change.
So protect your family and yourself: Don't wait for ideal conditions to create your estate plan. None of us is ever certain about what tomorrow will bring. Life, and the law, are always works in progress.