When I think about estate planning (health proxy aside – covered elsewhere), the primary thing that comes to mind is a will or a trust. However, there are a number of ancillary legal documents that may be necessary too, depending on your particular situation. We are not lawyers and have very limited experience drafting legal documents ourselves. However, we have a strong preference for research, discussion, and making our own decisions. For better or worse, this is how we have led our lives. We’ve never had legal counsel when setting up or closing down a business, and never-ever had a financial advisor. Take the following with a grain of salt and get counsel if you feel you want guidance. This is just our way of thinking…
As a reminder, we are heading off on long-term nomadic travel. We have no real estate, no business interests, and no real property other than a storage unit in central Florida. We’ve been married for nearly 30 years and have one heir. We have a simple situation.
What's Suitable? Will, Trust, or Both?
To our way of thinking, with most of our assets in Individual Retirement Accounts (IRA’s) with defined beneficiaries, there really is no need for a trust. As we understand it, the primary benefit of a trust is to bypass probate. However, IRA’s bypass probate anyway. A Transfer on Death directive will cover our non-retirement accounts. Since we have one single heir and no real-estate, we believe a trust is overkill for us.
In our wills we define our Executor, Digital Executor (see Digital Assets), and allocation of the limited physical property we have at this point.
Are We Covered Globally with a Will or Trust?
As near as we can tell, since all our assets exist in United States institutions and we are residents of Florida, we believe a will (or trust if we had one), executed in the State of Florida is more than sufficient. No need for complex validation via the Florida Secretary of State, the U.S. State Department, or foreign government entities. Simple.
That said, we don’t know what the future may hold. If, at some point in the future, we decide to purchase property or business interests in a foreign country – most likely to obtain residency or long term visa – then we will need to return to this. For legal documents to be recognized overseas they need to be authenticated one way for a country that is a signatory 1961 Apostille Convention or another way if they are not a signatory.
Establishing a Financial Power of Attorney
If one of us becomes incapacitated for some reason, we need the other to be able to manage money on our behalf. Worse, if both of us are incapacitated (but not dead) we need an alternate to have this power. The financial power of attorney is the mechanism to handle this. It must be more than simply giving login rights to another person – they need legal cover.
As we understand it, there are two options; springing or durable. Durable is in effect whenever the individual is incapacitated. Springing requires another action, like a doctor validating incapacitation, for it to take effect. As we will be overseas, and it’s questionable how quickly a foreign doctor might take such action, or if it would even be acceptable by U.S. based entities. Therefore, we feel the only real alternative is a durable power of attorney so decisions (and crucially required payments) can happen quickly.
Is a Financial Power of Attorney Valid Overseas?
In our minds, the validity of a financial power of attorney, executed in the United States, but presented in a foreign country, is irrelevant. For now, we have no financial assets in a foreign country so the question is moot. Since we each have power of attorney if needed for the other, and have backup who, 99.99% of the time will not be with us, we feel we are covered.
Setting Up Legal Documents (On Our Own)
As I mentioned at the start of this post, we have a strong preference to handle these things on our own. It’s generally worked very well for us over our lives and we feel we understand the documents and arrangements far better if we do them ourselves.
We’re also nomads, remember. Having more physical “stuff” of any kind is a problem. So is physically sitting down with an attorney. Worst still is making changes every year or two requiring wet ink witness signatures and notarization back in the United States. We need a platform to help us create the basic documents but customize the language enough so they remain valid for a number of years.
There are a number of online platforms to support the creation of legal documents, with or without legal review. They include Trust & Will, LegalZoom and GoodTrust among others.
We looked at each of these, including pricing, features considering our DIY preference, and ability to make changes later at reasonable cost. We looked for user experiences wherever we could, using Reddit the most to get an understanding of experiences with each platform.
Using GoodTrust For Our Legal Documents
Finally, we chose to go with GoodTrust. At a reasonable cost, this platform allowed creation of the documents we needed for both of us. It also allows use by additional family members. This included wills, financial powers of attorney, healthcare directives, and funeral directives.
However, GoodTrust isn’t perfect and we needed to work around it a bit. The platform provides legal templates of all the documents. However, the wording in many cases didn’t fully suit our needs. Minor things, but still, the platform didn’t allow for wording adjustments we needed. For example, providing a backup executor if our son wasn’t yet at the legal age of majority.
Ultimately, we took the documents generated by GoodTrust, which were in PDF format, and extracted the text from them. We then edited this text in Microsoft Word so they met our needs.
This certainly creates some future risk if laws change. In theory, GoodTrust automatically updates their templates as laws change and we “break” this by exporting and editing outside the platform. But we are willing to accept this risk and added re-work necessary when this happens.
In addition to the core function of creating legal documents, GoodTrust provides a “vault” to store copies of the executed documents, passwords, and guidance for a Digital Executor. We determined their solution to be insufficient for our needs. I’m not confident in their security (they aren’t a security company after all) and we store passwords in a much better platform. We also have other documents and information our executor would need secured with a cloud storage provider already. So we essentially are using GoodTrust only as a starting point for legal docs, and nothing more.
Our Approach to Legal Docs of Estate Planning
We have always had a DIY approach through life and that applies to the legal documents necessary for estate planning. There certainly are considerations if you will be nomadic, especially if you are living all over the world with no fixed address.
Many legal documents may not be honored overseas at all. Depending on your circumstances you may need to follow a complex “authentication” path to ensure your legal documents are acceptable in a foreign country. This is exponentially harder if you want them accepted in any country in the world at any given time.
In our case, we used GoodTrust to build the basic foundation of a will, advance health directive, financial power of attorney, and funeral directive. We have no assets outside the United States. Those in the US, for the most part, automatically bypass probate. For these reasons we aren’t worried about a trust or an apostille.
The only exception, and I’m keen to learn a better option, is the Advance Directive (Health Proxy). In this case we will go so far as to get it certified by the Secretary of State of Florida. And then we will just hope that we can make it work if it is ever needed in whatever country we happen to be in.
This post is part of a larger series covering our approach to getting our affairs together and estate planning ahead of a long adventure in slow travel around the world. Read more background on this series or jump to other topics in the series.