My law office “swag” includes a dog bone-shaped holder filled with waste bags — colloquially known as “poop bags” — that can be attached to a dog’s leash and used to clean up after your dog on walks.
The holder says, “Don’t Leave a Mess Behind” and it includes our law office contact information.
Classy, we know. But there’s a reason for this swag. Two reasons, actually.
As the author of several “dog books,” I have attended many dog walks and animal charity fundraisers, and I know how much these bags are needed and appreciated. One should not leave a dog’s mess behind. But also, I’m an estate planning attorney, and I see what sorts of messes humans leave behind if they haven’t planned well for their death or incapacity.
What sorts of messes do I see?
Failure to plan at all
If you are 18 years of age or older and have no power of attorney, no health care directive, and no will, you’re creating a mess should you become incapacitated or die.
Without these documents, you’re leaving it up to your next of kin and a judge to determine who can act on your behalf (incapacity or death) and who eventually inherits from you. This promises to be a long, complicated, and somewhat expensive process, because that’s how court works.
Even if you think you don’t own enough, are too young, or don’t care who gets your stuff when you die, you should at least care whose making decisions for you in the event of your incapacity. Accidents and illnesses are not ageist—they can happen to anyone.
Not understanding documents you do have
Too many times, I have heard folks say they don’t need a trust because their child has a power of attorney or is on a joint account with them.
A power of attorney is useful for certain assets and decisions to be made for you if you are alive but incapacitated. It is useless when you die, as it becomes invalid upon the death of the principal. Your agent will not be able to access your assets or even get any information from a financial institution following your death.
A joint account will assure that the other person on the account, and only that person, receives the funds at your death, but it also assures they and their creditors can take the funds during your lifetime. You may have an argument or a legal case for getting the funds back, but is that really easier than getting a will, a trust, and a power of attorney in the first place? Also, the joint account holder has no legal obligation to share the account with your other children or heirs at your death.
Not funding your trust
If you’ve taken the time to get a living trust in place, please be sure you’ve titled your assets in the name of your trust. Your home, bank accounts, investment accounts, LLC interests, stock, etc.., should all be titled in the name of your trust. For example, Susie Super’s bank account title should read “Susie Super, Trustee of the Super Family Trust dated April 1, 2025.” It’s not enough that there is a schedule attached to the trust that lists the bank account.
The schedule of assets is a statement of your intent—it’s not an actual transfer of your assets. The schedule, at best, provides a road map to your successor trustee as to what assets you meant to have in your trust. It also possibly allows for a court procedure that is less costly and time consuming than a full probate.
The procedure, known as a Heggestad petition, essentially asks a judge to allow the transfer of assets to the trust based on your intent as evidenced by the schedule, without requiring a full probate. It doesn’t always work. And again, it’s a court proceeding, so it’s going to take more time and money than if you had transferred title when the trust was implemented.
Trying to please everyone
Sometimes messes are left behind because someone didn’t want to make the tough call—whether it’s deciding on a trustee, what’s really fair between the children, or, the biggest issue of all, how to divide assets between spouses and children (even more complicated in second marriages).
That last one is a big one. A typical choice is to leave assets in trust to a surviving spouse, with terms allowing the spouse to get all of the income, but principal distributions can only be made for the spouse’s “health, education, support, and maintenance.” Then, at the spouse’s death, the children get what’s left. Sound reasonable?
I assure you that the spouse and children will have different ideas about “support and maintenance” and probably even what “income” is. The spouse will want assets invested to kick off the highest amount of income possible, and the children will want the principal to grow. The spouse will think a vacation to Europe is “support and maintenance” because they always took vacations when the other spouse was alive, and the children will think a weekend at a Motel 6 in Gallup, New Mexico is plenty of vacation.
If you haven’t defined terms, been very clear about the goals of your trust, and spoken to your family members about your priorities and intent, you may be leaving a mess behind.
You wouldn’t leave your dog’s mess behind, so don’t leave a mess of your own. As the saying goes, you don’t know what you don’t know, so be sure to talk to an expert. (And if you do have a dog—make sure you’ve taken care of them in your estate plan, too.)
Teresa J. Rhyne is an attorney practicing estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I).” You can reach her at Teresa@trlawgroup.net
