(Photo Illustration - MetroCreativeConnection - Legal-Ease - Gerald W. Townsend)

When I write Planning Documents for clients, such as Wills, Powers of Attorney, and Transfer on Death Deeds, they often ask me, “How often should I review these documents?” I normally answer, “Every five years or sooner if things in your life change.”

Let’s look at some of the things that change that would justify updating your documents:

Example 1. A Change in the Law. In 2013 I wrote a Will for a client in which he said, “I give my home to my wife for her life and, after her death, I give my home to my son.” This was intended to ensure that his wife would have the home for her lifetime, after which it would belong to his son.

Recently he and I reviewed his documents. When we reviewed his Will I told him that in 2014 the West Virginia Legislature created a way in which he can own his property and then give it to his wife and son which will have these advantages: (1) it will not affect what he can do with his property during the rest of his life, (2) it will allow his wife and son to have instant access to the property as soon as he dies and keep it out of his estate, and (3) it will protect his property from being used to pay any bills he owes when he dies, including reimbursing Medicaid for any nursing home money it may have spent on his care. He liked the idea, so I wrote a “Transfer on Death Deed” which instantly at his death will deed the lifetime use of the property to his wife, and, subject only to the wife’s use while living, will give the property to his son. My client’s property which is transferred at death by a Transfer on Death Deed will not become part of my client’s estate when he dies so his wife and son will not be delayed in getting their hands on the property and the property will not have to be used to pay any bills he owes at death, including reimbursing Medicaid. This is a much better result than if the property went through his Will, which would have delayed when his wife and son could get their hands on the property and left it at risk of having to be used to pay his bills.

Example 2. Changing Circumstances. Another client recently asked me to review his Will that I wrote for him in 2012. Here are some of the provisions in his Will and how those things stand now:

Will: “I give my pet dogs, Buddy and Mattie, to my friends Carla and Kathleen, together with $10,000.”

Now: Buddy, Mattie, Carla, and Kathleen all are dead.

Will: “I give to my brother my 1970 houseboat known as the Grand Old Lady.”

Now: the Grand Old Lady is owned by somebody else and being used as a bed and breakfast on the river in Moundsville, West Virginia.

Will: “I give to my friend, Tom Thompson, my 5 acres of land in Wood County, West Virginia, containing the apartment house in which he has lived for over 30 years, never once being late in paying his rent.”

Now: The tenant still lives there, and still pays his rent on time, but my client sold the land and apartment house to someone else four years ago.

Will: “I give to my business partner of over 50 years duration all of my interest in our business.”

Now: both my client and his business partner have been retired for six years and the business is defunct.

Will: “I designate my brother, William, to be the executor of my estate; if he cannot or will not do that job, I designate my brother, Donald, to be the alternate executor.”

Now: William is dead and Donald is in a nursing home with advanced dementia.

The bottom line is that family circumstances can change dramatically as time passes. Sometimes we overlook how those changes can affect planning we have already done. This is why I advise clients to review their documents every five years or when there are significant changes in their lives.

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Gerald W. Townsend is a partner in the law firm of Fluharty & Townsend, Parkersburg, West Virginia, with special emphasis upon Medicaid planning to protect assets from nursing home costs. He can be reached at jtownsend@fntlawoffices.com.