Regardless of circumstances, there are some common things that will come up for virtually every married couple as part of their estate planning conversation. So, if you briefly discuss these things together beforehand, then you won’t be surprised when the estate planning attorney asks you about them in the meeting. You won’t have to make quick decisions because you’ll have already thought about what you might like to do and that’ll make you more confident in your meeting with the estate planning attorney and make the whole conversation just much more efficient overall. Plus, it’ll give you the opportunity to have better questions for your estate planning attorney just in case you get stuck on a topic.

Before married couples meet with their estate planning attorney, they MUST discuss these things between each other.

Regarding Your Death

1. What should happen when one of us passes away?

So, for this conversation you might discuss if you want 100% of the assets controlled by the surviving spouse, or if you want to have some protections in place for the kids to make sure that they will get assets at some point after you die. The concern here is whether the surviving spouse remarries and the kids may be cut out of their inheritance entirely.  You may want to put some things in place where the deceased spouse’s portion goes into a Trust for the surviving spouse to use for the rest of their lifetime and then when the surviving spouse dies, things revert back to the kids.

2. After we both pass away, should we give everything equally to the kids?

By far the most common answer is that we want things to go to our children equally but there’s also some other situations where people want to provide things for their grandchildren, or make specific gifts of specific assets to a particular child for sentimental reasons. Or, one of your children is financially worse off than the other, so, you want to leave them more money than the other kids, right? Every situation is different, but the most common answer is to leave things equally amongst the kids.

3. Are we comfortable leaving our assets to our kids outright after we pass away or do we want to limit their access to their inheritance and a Trust?

Would you leave everything to your kids in a Will so that they can do whatever they want to do with their inheritance immediately after you die? Or, should you leave things to your kids in a Trust so that they don’t have the ability to blow it all too fast? Or maybe you can help protect their inheritance from any future divorces they might have. Call our office to see if having your children inherit in an EP Lifetime Asset Protection Trust to protect your children’s inheritance from being taken if they got into a divorce or got sued would be right for you and your family.

4. Who is actually going to make sure our estate plan gets carried out when we pass away?

When you pass away, you’re going to have to designate someone to make sure that everything goes exactly how you have it spelled out in your estate plan. Whether you call that person (or persons) executor or trustee, doesn’t matter. You may have someone in mind that is financially responsible and has a good relationship with your kids.  You may want your kids’ input as to who that person should be and possibly work with your kids as co-trustees. You can bring it up to your estate planning attorney but these are the things that you want to be thinking about.

5. What do we do with all of our personal belongings?

In this instance, we’re referring to non-titled personal effects like jewelry, apparel, books, artwork, etcetera. Not super valuable items, but very sentimental things to you.  You’ll probably come up with one of three answers as to what to do with your personal effects after you’re both gone.

  • Option 1 – You include instructions in your estate plan for your kids to disperse of your effects as they would see fit and just let your kids figure it out.
  • Option 2 – Include a non-binding side letter in your estate plan that explains to your kids that legally your estate plan will let them divvy up your personal effects as they see fit, but if they read this letter they’ll see that you really wish that you would give these certain items to so and so because of this reason and give these other items to so and so because of that reason.
  • Option 3 – Designate in your estate plan that these specific personal items go to a very particular person because you don’t want there to be any question whatsoever or any arguments amongst the kids.

6. Children Protection Plan

If you both die in a car accident coming home from date night – who is legally allowed to pick up your minor children? If you don’t have a legal Children Protection Plan in place they could end up in the hands of child custody until Guardians can come forward or be nominated by a court in the county. If you don’t have a Children Protection Plan, then call our office to have our attorney prepare the legal documentation to create your Children Protection Plan as a part of your estate plan.

Regarding Your Incapacity.

Up to this point, we’ve been discussing the conversations a married couple should have about what should happen after they die. Now, let’s talk about what you should discuss when you’re alive but you’re mentally incapacitated.

6. Who should handle all of our money?

If we’re both in a condition where we can’t make our own financial decisions and sign our names to make financial transactions, who should handle that? Or who should handle our money when one of us dies and the surviving spouse does not have the mental capacity to handle all of our financial transactions in our accounts? You see, that person is called the financial power of attorney.

7. Who should be able to make health care decisions on our behalf?

If we are in a surgery or if we can’t talk to our doctors or have dementia and can’t make medical decisions on our behalf, who would make those decisions? See, that person is called the health care power of attorney. Now, for most married couples, they’ll name their spouse to be their financial and health care power of attorney and maybe they’ll have a backup successor power of attorney just in case their spouse is not able to assume the power of attorney role at that time. That successor might be the responsible uncle or aunt or maybe your sister or brother, someone you hold in high regard and you know them to be responsible. Again your attorney will be able to help you out making that the correct decision about who should be taking that role just in case you or your spouse can’t.

8. How do you feel about a living will?

A living will is a document in which you state your wishes to have the plug pulled if you’re on life support machines. Or if you’re on  life support with no chance of recovery.  Do you want to have your kids take on the burden of having to make the to terminate your lives or do you just want to tell the doctors in plain English and writing in a living will?

9. Do we want to leave things to each other and our kids in a way that the surviving spouse and the kids don’t have to go through probate court when we die?

If you die and keep everything in your name and you leave everything in the traditional way to each other and to your kids through a Will then there’s going to be two probate proceedings one for each of you when you die. That means your assets are going to be frozen and your survivors-the kids-are going to have to hire a probate lawyer to go through this court process and then judges order that the assets be transferred out of your names and into their names as the kids.  This process can take anywhere from 6-12 months in Ohio and cost up to $10,000 or even $15,000 in attorney’s fees. To avoid this, you can  create a

revocable living trust where you can retitle assets out of your name and into the name of your Trust so that when you die, your kids don’t have to go through probate. This way, the money that you save on kids having to pay for these probate attorneys, they can keep in their inheritance and they can get your assets in a matter of weeks instead of 6-12 months.

Those are the 9 things married couple should discuss prior to meeting with the estate planning attorney. As you can see, if you think about these things ahead of time, then, you’ll be better prepared to work with your attorney on making the best comprehensive estate plan that actually accomplishes the goals you have for yourself and your family.

If you ever have any questions about this topic or need to talk about your estate planning needs you can set up a time to talk over the phone for free.


This article is a service of estate planning attorney Elliott Feldman and the Elliott Feldman Law Group. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Prosperity Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Prosperity Planning Session and mention this article to find out how to get this $750 planning session at no charge.