Pay attention to advice to update documents

Dear Jonathan: My wife passed away last year just a few months after we had updated our estate planning documents. The attorney who prepared the documents on our behalf has recommended to me that I engage in yet another update of my estate planning documents for the purpose of removing my wife from the documents as the primary beneficiary and as the primary fiduciary. I guess I kind of understand why he is recommending this, however, in all of our documents we named our son and our daughter as back-up beneficiaries and fiduciaries. Consequently, it seems to me that if I did nothing, it would be fine because all my children are already included and any references to my wife would be ignored since she is deceased. Isn’t this correct? Could there be another reason why my attorney is recommending that I update my documents, or is this just another way for him to generate a fee?

Jonathan Says: Since I was not involved in preparing your estate planning documents and do not have any information regarding your particular circumstances other than the fact that your wife passed away and that your children are named as alternate beneficiaries and fiduciaries in your documents, I really can’t speculate as to why your attorney is recommending that you update your documents other than for the specific reason he provided you. This is a question you should pursue with him so that you are clear as to whether there are any other reasons behind his recommendation.

Just so you know, I also typically recommend that my clients update their estate planning documents after a spouse dies, even if the documents were recently executed. This just makes for a cleaner set of documents because they reflect the current circumstances.

One example where I have found it especially beneficial to have updated documents is with the financial and health care power of attorneys where the deceased spouse was named as the primary fiduciary. If your son is named as the first alternate fiduciary who is to act if your wife cannot act as your agent under your financial power of attorney and as your patient advocate under your health care power of attorney, he will need to provide proof to a third party, such as a bank or a hospital, that your wife is in fact deceased before he will be able to act on your behalf under both of those documents.

Although your son could certainly provide a copy of your wife’s death certificate as satisfactory proof, if time was a critical factor, your son’s having to obtain your wife’s death certificate first could delay his ability to act for you right away. If, on the other hand, you had updated financial and health care power of attorneys naming your son as your primary fiduciary, no proof of your wife’s passing would need to be provided to any third party because she would not be named in the document as your primary fiduciary.

You might want to consider asking your attorney if he would be willing to reduce the fee if all you are doing is updating the documents for the purpose of removing your wife’s name as a beneficiary and fiduciary. Given that you just updated your documents last year, and assuming there are no other changes that are being made to the documents, he might be willing to work with you on the fee.

Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., in Grand Rapids, Mich.

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