Founder
When a client contacts my office and tells me they only have a short time to live, the planning options are limited. In some tragic cases, I am called to the client’s bedside because the ill person is simply too weak or injured to travel to my office.
No matter what the circumstances, these “death bed” planning sessions are always emotionally difficult, placing an incredible emotional burden on the person who is dying.
What should you know about last-minute planning before you find yourself, or a loved one, in this situation?
Key documents:
Your attorney will likely help you create some basic documents, including a last will and testament, power of attorney, and healthcare proxy. The attorney may also help you update beneficiary designation forms for certain assets that can avoid probate.
If death is expected within weeks, it’s likely no longer possible to execute a trust to save probate costs, direct the use of an asset after you’re gone, or provide other benefits, such as protecting an heir from debt collectors or claims in a divorce.
Tax planning:
It’s also difficult to do much tax planning at this stage. The Internal Revenue Code has a three-year claw back period designed to prevent someone from making tax advantaged gifts right before they die. The one notable exception to this rule is annual exclusion gifts. The per gift limit in 2022 is $16,000.00, and you can make gifts to as many individuals as you like to draw down your estate to within the lifetime exemption of $12 million. (Note the lifetime exemption is slated to drop to $6.2 million at the end of 2025.)
State of mind:
A person making death bed estate plans is often in a fraught, emotional, or medicated state of mind. It may be difficult for you to think clearly enough to provide a detailed asset list and engage in a thoughtful discussion of family gifts and dynamics. You may remember something (or someone) hours or days later and want another rapid change to your plans.
Undue influence:
Your Attorney will need to ask family members to leave the room to avoid future claims of undue influence. If death is near, any temporary separation can be a source of trauma for your loved ones.
Potential challenges:
Last minute estate plans are targets for probate court challenges. An heir or interested party unhappy with your Last Will and Testament may claim you were ill, under the influence of medications or not of sound mind. An experienced attorney will work to take the necessary precautions to, avoid such claims, but any last minute plan can introduce this element of risk.
Pandemic restrictions:
COVID-19 presents a potential challenge to death bed planning as isolation and social distancing requirements may prevent you from having a document witnessed and notarized.
Creating a last-minute plan requires responsiveness and speed. Additionally, it is important to anticipate potential challenges and put mechanisms in place to demonstrate that the drafter was of sound mind when creating their Last Will and Testament.
As challenging as it is to draft a Last Will and Testament on your death bed, it is still better than dying intestate (without a will). A rushed effort is preferable to nothing. Nonetheless, last-minute planning can open the door to hurt feelings and family disputes. Your best course of action is to complete your Last Will and Testament early, well before you need it. When that’s not possible, look for an estate planning attorney who can be empathetic about the emotional challenges while helping you to avoid future challenges in probate court.