Most of you will answer “yes.” You will be especially confident if it was prepared by and with the advice of a qualified attorney. After all, that is that you paid for. Unfortunately, many estate plans don’t work, not because of the ineptness of the attorney, but often because of the passage of time and changes that have occurred in your family or estate. The most common events that derail a good estate plan are births, deaths, divorces and other changes of circumstance since the last time you discussed it with your attorney. If it has been more than five years, it is time for an estate planning checkup. Pause and ask yourself this question: “If I was preparing my estate plan today, would I change anything?”

Some other reasons that estate plans fail, other than inadequate documents, is the way that title to assets is held that conflicts with your plan and forgetting to update beneficiary designations. You should be especially concerned with the following:

1. Control of Your Assets While You’re Alive and Well. You should have a plan in place that preserves your total access to, and control over, your property while you’re alive and well. If you are married, this may not be the case if your assets are jointly titled with someone other than your spouse, or if you fail to follow abide by the terms of a property settlement agreement after a divorce.

2. Control of Your Assets While You’re Mentally Disabled. If you become mentally incapacitated, without proper foresight and planning, your assets may be placed under a court-supervised guardianship or conservatorship. Ask yourself these questions: “What if, without notice and an opportunity to change my plan, will happen to my assets? Will my spouse or another family member have the access they need without risking or sacrificing my financial security? Will someone be able to pay for my care and expenses?” Mental disability does just come with age, an accident, stroke, heart attack, etc. may be enough and often without warning.

3. Control of Your Assets After Your Death. Your estate plan should insure that your property will be distributed according to your direction, not the direction you determined in the past or determine now, but as you would determine considering all reasonably anticipated future events? Play what I call the “what if” game. There are 50 legal jurisdictions in the United States and the laws of all differ in some respects. Some (Louisiana) have their roots in French Napoleonic law, others in English Common law and some, like Texas, in both English Common law and Spanish law. There are significant differences. Are your documents prepared under the laws of the state of your current residence? When you move from one jurisdiction to another, a matter of utmost priority is having your estate planning documents reviewed by a qualified local attorney and revised as necessary.

4. Privacy When Settling Your Estate. Some do not want others (particularly those outside the family like neighbors, friends, co-workers, creditors, etc.) to know the details of their estate after death, others are not concerned. Texas took an important step toward preserving this privacy by enacting a statute that allows some estates to file an affidavit in lieu of inventory, appraisement and list of claims. Be certain that your will provides for this. However, when a will is filed for probate, it becomes part of the public record that anyone may read. This means that, even though the extent, value and description of your assets may not have to be placed in the records, the distribution of your estate under the terms of your will may be read by anyone that wants to know. The only way to avoid this is to have an estate plan that will provide for settlement and distribution of your estate without probate. There are many ways to accomplish this, but they all require some effort to put in place and due diligence to keep the plan current.

5. Control of the Costs Associated With Settling Your Estate. As a general rule, settling a decedent’s estate by probate is the most expensive process. Using a so-called living trustto avoid probate can be very effective, but will require additional expense initially. Regarding estate settlement, aside from paying your debts and taxes, the major effort is transferring ownership of your assets. With probate settlement, both are accomplished after your death. With a living trust, the property transfer is accomplished when you establish the trust and again later; maybe at your death or maybe not until someone else’s death. Therefore, while privacy may be maintained, not all of the expense will be avoided.