“Don’t look back. Something might be gaining on you.”

—Leroy “Satchel” Paige

I imagined that near my 60th birthday I might author a follow-up to my 2016 “Where There’s a Will” column on mortality, written on the occasion of my turning 50.¹ That piece appeared to resonate with many readers, as I received more feedback on that installment than any other.

However, recent events have brought my thoughts back to death earlier than hoped. My assistant’s husband of 41 years died in early November. A 50-something family member had a cancer scare in late November. (Thankfully, everything turned out alright.) “Kathy,” a 38-year-old client, is battling cancer for her life. “Chris,” my 40-year-old friend, died in March after an 18-month battle with cancer, leaving behind a wife, three young sons and a faith community with difficult questions and answers that offer intellectual satisfaction but little emotional comfort.

I am tempted to think I’ve just had a run of bad luck and death won’t come any closer. I’ll probably wake up tomorrow, likely won’t have a terrible car accident, presumably won’t get shot while in the wrong place at the wrong time, and have no unusual pains, so I want to believe tomorrow will be fine. However, none of us knows what the next day will bring (or even if it will come). I’ve noticed that it is increasingly common to read obituaries for people born after I was.²

I could become depressed (an unfortunate family legacy) if I dwelled too long on the losses around me, but I strive to face these hard realities with peace and resolve. I can think of three keys to doing that: perspective, community and preparation. Lawyers can help clients with all three.

Perspective

Those who look toward death with the most courage and grace are often those who focus less on the loss of death and more on the gift of life, however long or short it is. One way to do that is celebrating a life well lived and the absence of regret, which provides a guiding principle for how all of us can live.³ Another way is taking reasonable steps to improve the mental, emotional and physical quality of life.⁴

The tradition of the lawyer-as-counselor finds its best expression when we are trusted (and expected) to give wise feedback and advice that goes beyond legal issues into practical and personal matters. Some of the most heartfelt thanks clients have expressed to me are in response to things I say that start with something like, “I tell you this not as your lawyer, but as your friend.”

Community

There is something powerful (I would say sacred) when I am able to walk alongside someone in their darkest moments. Chris had, and his family continues to have, deep and broad support from folks who are physical, emotional and/or spiritual family. If death and loss are realities, please, God, let us not go through them alone.

Attorneys often are connected in their communities and can help the hurting find the support and resources they need. Trusts and estates (T&E) attorneys in particular have knowledge of people and organizations that can help those facing their mortality.

Preparation

Whether a person thrives on making plans or is inclined to meander through life and see what happens, knowing that important details are handled well can bring comfort to those facing their mortality. T&E lawyers are quite experienced at guiding clients and their families through difficult times and to finding the peace of mind that comes from good planning.

The following is a checklist of items for “getting my affairs in order.” [Pause for the realization that you haven’t given proper attention to everything on this list.]

Instructions, passwords, asset info, account numbers, etc. It is very common after a person’s death for spouse and children to know very little of what they need to know about important financial and legal matters. Leaving thorough and complete (yet secure) information and instructions is a gift to loved ones dealing with loss.

Powers of attorney and advance directives. Most of us at some point will depend on someone else to manage our health care and finances. The standard documents to name lifetime fiduciaries and make our end-of-life health care wishes known are a property power of attorney (sometimes called a “durable general power of attorney”), a health care power of attorney and an advance directive.⁵

Life insurance. Life insurance has many uses, but the most basic is to replace the earning potential of a breadwinner who dies prematurely. Good planning includes tending to beneficiary designations, and perhaps adding trust structures for beneficiaries.

Planning for care and residence. Obtaining long-term care insurance, making claims under existing long-term care policies and getting on waiting lists for independent living, assisted living, skilled nursing care facilities and in-home care providers can be important steps to planning for my residence and care when I need help.

Wills and trusts. Whom do I want to benefit from my estate after my death? How should the inheritance be structured to work best for the beneficiaries? Have I incorporated divorce and creditor protection and tax strategies into my planning? Lawyers and their clients address these issues in wills and trusts.⁶

Asset titling and beneficiary designations. Many estate plans do not work as intended because assets are not properly titled and beneficiary designations are not coordinated with the documents lawyers prepare. Complete planning ensures all assets flow to the right people in the right ways at the right times.

Succession planning for a business or professional practice. What happens to your law practice, or your client’s dental practice or closely held business, when you’re/she’s gone? Do you have partners or employees who could run the business? Will it be sold for something approaching fair market value? Will it shrivel up and die as employees, customers and vendors move on? Wise planning anticipates and answers these questions and more.

Have you done these things? Your loved ones might be very glad that you did. Beyond doing for themselves, good lawyers are skilled at identifying problems and opportunities and educating and motivating their clients to address them. Please discuss with your clients their need to address these issues in their lives and planning.

Is estate planning urgent? I tell clients that we have until they’re incapacitated or deceased to complete their planning, but rarely can they tell me when either will occur. It can be very difficult to address these matters while inside a health maelstrom. My personal experience and recent news stories tell us that young people are not immune from frightening diagnoses.⁷ Therefore, wise people tend to these matters sooner rather than later.

While knowing she would die at age 49 due to cancer, writer Amy Ettinger celebrated the life she had lived:

I am dying around people who love me and are bringing me meals when I need them. These are people who are willing to show up for me no matter what. And I know they will show up for my husband and daughter, even after I am gone . . . The end of my life is coming much too soon, and my diagnosis can at times feel too difficult to bear. But I’ve learned that life is all about a series of moments, and I plan to spend as much remaining time as I can savoring each one, surrounded by the beauty of nature and my family and friends. Thankfully, this is the way I’ve always tried to live my life.⁸

May we all live lives in community, with healthy perspective and sufficient preparation, to allow us to look back with the same victorious realization. |||

---

EDDY SMITH practices with Kennerly Montgomery in Knoxville. He focuses on planning, administration, and litigation related to trusts, estates, businesses and nonprofits. Smith is a fellow of The American College of Trust and Estate Counsel and served as chair of the TBA Estate Planning and Probate Section.

---

NOTES

1. “We’re All Going to Die (and Other Happy Thoughts of an Estate Planner Turning 50),” Tennessee Bar Journal, v. 53, no. 4, available at www.tba.org/Smith_AllGoingToDie [adapted and reprinted in Maine Bar Journal, Louisville Bar Briefs, Across the Bar (San Joaquin County, California Bar) and The Barrister (Camden County, New Jersey Bar)].
2. At 57 years and 6 months, the Social Security Administration projects I have 25.2 years left before I die at 82.8. www.ssa.gov/cgi-bin/longevity.cgi. I can live with that prognosis (pun intended).
3. See, e.g., Ettinger, “I am dying at age 49. Here’s why I have no regrets.”, Washington Post, Aug. 23, 2023, available at www.washingtonpost.com/lifestyle/2023/08/27/cancer-diagnosis-life-dying-ettinger/; White, “My dying wife hoped to inspire people with her essay. They ended up inspiring her.”, Washington Post, April 7, 2024, available at www.washingtonpost.com/lifestyle/2024/04/07/amy-ettinger-death-dan-white/.
4. See, e.g., Petrow, “How to age better than your parents,” Washington Post, April 6, 2024, available at www.washingtonpost.com/wellness/2024/04/06/better-aging-falling-hearing-aids/.
5. See Tennessee Advance Directive for Health Care, available at www.tn.gov/content/dam/tn/health/documents/Advance_Directive_for_Health_Care.pdf.
6. Failing to get lawyer help with estate planning can end up costing the family way more than good planning costs.
7. See Wen, “Why cancer rates are rising among younger people,” Washington Post, April 4, 2024, available at www.washingtonpost.com/opinions/2024/04/04/early-onset-cancer-increasing-princess/; Sheikh, “More Young People Than Ever Will Get Colorectal Cancer This Year,” New York Times, March 27, 2024 available at www.nytimes.com/2024/03/27/well/colon-cancer-symptoms-treatment.html; “Catherine, Princess of Wales, Reveals She Has Cancer” New York Times, March 22, 2024, available at www.nytimes.com/live/2024/03/22/world/princess-kate-middleton-cancer.
8. From Ettinger, supra.