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You can do everything right — hire the attorney, make the hard decisions, sign and notarize all of it — and still leave your family in the dark. A plan nobody knows about, kept somewhere nobody can find, does not function as a plan. It functions as a surprise.
Renee Parris treats communication as its own step in the process, not an afterthought, and she breaks it into three channels. Each one does something the others cannot.
The Assumption That Causes the Damage
The question people ask is which documents they need to sign to make their wishes legal. The assumption underneath is that once the papers are signed and filed away, the family will find them when the time comes and things will proceed.
The better question: how do I make sure my family understands why I decided what I decided, and can put their hands on the documents within an hour of needing them?
Those are two separate problems. One is a conversation. The other is logistics.
Channel One: Say It Out Loud
These are not, I often say, the funnest Sunday dinner conversations to have, right? But it’s important that the people we love and are going to leave behind know what we want done. With our healthcare if we’re incapacitated or our assets…
Expect resistance, and expect it from the people you are trying to protect. Renee describes doing this with her own son:
What I’ve told our son when he was 18, we sat him down and we said, we need to talk about what would happen if daddy and I passed away. And he’s like, mom, do we really have to? I don’t want to talk about it. No, we really do. You have to talk about it because it’s important that you know how we feel, why we’ve made the decisions we’ve made.
“Do we really have to” is the standard response. The answer is yes, and you may have to lead through it.
Now the important limit. Renee is specific that this conversation is about structure, not a reading of the inventory:
Now you don’t have to get into who’s getting what because that could start like right now family trouble, right? Especially if you’re not dividing things that you think they would want them divided in that way. But just verbally, hey, I’m setting up a revocable living trust or I’m choosing power of attorney so you guys don’t have to make hard decisions.
That is a real distinction, and it is good advice. Telling your children there is a trust, who the trustee is, who holds healthcare power of attorney, and why you chose that way gives them everything they need to cooperate later. Walking them through line items — who gets the lake house, who gets the ring — starts the argument years before there is anything to argue about, while you are still alive to be lobbied.
Communicate the architecture. Let the documents handle the distribution.
Channel Two: Put It in Writing, Correctly
A conversation sets expectations. It does not bind anyone.
Nothing matters if it’s not in writing. Nothing is legally enforceable unless it’s in writing. So make sure that your documents are attorney drafted, that they have the appropriate notary signatures and witnesses.
Execution is where DIY plans fail, and witnesses are the most common point of failure. Your witnesses must be disinterested — people with nothing to gain from the document they are attesting to.
Your witnesses should not be anybody that is connected to the situation. Your witnesses cannot witness themselves being your power of attorney. Your beneficiaries of your will or your trust should not be your witnesses. They need to be disinterested people. They can be family members, but just nobody who’s going to be affected by whatever the document is.
The agent named in a power of attorney cannot witness it. A beneficiary of your will should not witness your will. A relative who inherits nothing is fine. Requirements differ by state, which is a reason to let the attorney who drafted the document also supervise the signing.
Once executed, different documents are enforced by different authorities. For a medical or financial power of attorney, a physician’s certification of incapacity is generally what switches your agent’s authority on. For a will, a probate judge runs the process:
With a will, there’s a judge involved, a probate judge. It’s his or her responsibility to make sure that your wishes are carried out… Eventually the judge will give the authority, the legal authority to the executor or the administrator to sell the house, liquidate the accounts, give the jewelry away, whatever it is you said to do.
Your executor cannot sell the house because the will says so. They can sell the house because a judge granted them authority based on the will. That is why the document has to hold up.
Channel Three: Make It Reachable
The old advice was a fireproof safe or a safe deposit box, and someone told where to look. Renee’s point is that this no longer matches how families live.
It used to be, you could put it under your mattress, put it in a safe deposit box, put it in your fireproof safe at home, whatever, tell somebody where it is. And that was fine. Well, now sometimes our people are scattered across the globe… You want them to have a digital access to it.
Your healthcare agent may be three time zones away when the hospital calls. A safe deposit box they cannot reach until Monday morning is not access.
Then there is the loss problem:
You also want to have a digital access, a copy of your documents in case they’re ever destroyed. Houses burn, floods come, earthquakes happen. Tornadoes happen, hurricanes, whatever. If your documents go missing, or sometimes, quite honestly, the wrong person knows where they are and makes them disappear. Like I’ve seen it all. I’ve been doing this a day or two. Whatever the situation is, they go missing. You want a digital copy that can be reproduced.
Note the second scenario in that list. Documents do not only disappear in fires.
A digital copy will not always substitute for an original, but it gives you a path forward. An attorney can prepare a supplemental affidavit explaining to the court or an institution why the original is unavailable, with the copy as evidence of what it said. Without a copy, you are reconstructing from memory.
Practical options: a secure cloud folder shared with the people who need it, an encrypted drive given to your agent, or emailing yourself a copy so it lives in your account. Whatever you pick, tell the relevant people how to get in, and make sure that access does not depend on a password only you know.
Five Things to Do
- Schedule the conversation. Cover the structure — what exists, who is in charge, why — and leave the inventory out of it.
- Confirm your witnesses were disinterested parties and your documents were executed the way your state requires.
- Tell your executor and your agents, by name, that they hold those roles. Being surprised by the job is a bad start.
- Scan everything and put it somewhere your people can actually reach from another state at midnight.
- Write a one-page index: what documents exist, who drafted them, where the originals are, and who to call. It is the most useful page in the whole file.
Your family will be at their worst the day they need this. The work you do now is the difference between handing them a map and handing them a search.
This article is for educational purposes only and does not constitute legal, tax, or financial advice. Witness, notary, and execution requirements for wills, trusts, and powers of attorney vary by state, as do the standards for accepting copies in place of originals. Consult a licensed estate planning attorney in your state before drafting, signing, or relying on any estate planning document.
About the instructor: Renee Parris is an estate planning educator with over 30 years of experience. This article is a companion piece to Renee’s course, Estate Planning, Simplified.
