Poor estate planning can leave your family with confusion, conflict, and unnecessary costs — but it doesn’t have to.
In this episode of The Agent of Wealth Podcast, host Marc Bautis is joined by Eric Kaplan, Senior Counsel in Greenspoon Marder’s International Wealth and Asset Planning Group. With nearly 25 years of experience, Eric shares valuable insights on the biggest mistakes people make with their estate plans, what happens when someone passes away without a will, and how strategic asset protection — both domestic and offshore — can safeguard your wealth for generations.
In this episode, you will learn:
- Why failing to create or update an estate plan can have serious consequences for your loved ones.
- The key documents every comprehensive estate plan should include.
- How to avoid probate and ensure your assets are distributed according to your wishes.
- The role of asset protection trusts — including offshore structures — in shielding wealth from creditors and lawsuits.
- And more!
Tune in to discover how proactive estate and asset protection planning can help you protect what matters most.
Resources:
eric.kaplan@gmlaw.com | www.gmlaw.com | Bautis Financial: 8 Hillside Ave, Suite LL1 Montclair, New Jersey 07042 (862) 205-5000 | Schedule an Introductory Call
Disclosure: The transcript below has been edited for clarity and content. It is not a direct transcription of the full episode, which can be listened to above.
Welcome back to The Agent of Wealth Podcast, this is your host Marc Bautis.
Estate planning is one of those areas that people often put off – but the consequences of poor planning, or no planning at all, can be devastating for families. Today, we’re diving into the key problems that arise from poor estate planning, what happens if you pass away without a will, and strategies to protect your assets and your family’s future.
Joining me for this discussion is Eric Kaplan. Eric is senior counsel in Greenspoon Marder’s International Wealth and Asset Planning group, with nearly 25 years of experience in estate planning and both domestic and offshore asset protection. He’s a widely published author in the field, having contributed to leading industry journals and co-authoring multiple editions of the Asset Protection Planning Guide.
Eric, welcome to the show.
Thanks for having me, Marc, I appreciate it.
You’ve been working in the estate planning field for nearly 25 years. What got you interested in this area of law, and what keeps you passionate about it?
There wasn’t anything specific that got me into this area of law back in 2000. When I first started my legal career, my first position as an attorney was at an ambulance-chasing law firm, where I practiced workers’ compensation and Social Security disability law. That job quickly demonstrated the kind of attorney I didn’t want to be — and how I didn’t want to be treated by either clients or colleagues.
So, I responded to a job advertisement in the Denver Post. This was before Indeed or CareerBuilder — back when you found jobs in the newspaper. The ad was for a firm called Eng Ryman & Lockwood here in the Denver area. I got that job based on two factors. First, one of the associate attorneys at the firm had previously worked with me at a temporary legal job and put in a good word. Second, the head of the firm, Barry Engle, was a huge music fan — especially of Eric Clapton — and he was amused that my name was similar to his. So, he gave me a shot.
Although my musical talent isn’t in Eric Clapton’s stratosphere, meeting new clients, getting to know them, analyzing and creating — and later updating — their estate plans, and giving them peace of mind is what keeps me passionate about my work.
Like most people in the workforce, I also find that being passionate about your job depends on the people you work with. Greenspoon Marder is a great firm and treats me well. I’d also like to specifically acknowledge my boss, Edward Brown. I first started working with Ed at Eng Ryman & Lockwood back in 2001. Except for a three-year period after that firm dissolved — when we were at different firms — he eventually brought me “back home” almost six years ago.
He’s been my boss, colleague, mentor, and friend for 25 years now. Ed is one of the foremost experts in domestic and offshore asset protection — and one of the best human beings I’ve ever met. His mentorship and friendship motivate me to continually practice at a high level so our clients remain satisfied — and, most importantly, so I don’t disappoint him.
It’s great to have that kind of motivation. Alright, let’s start from the top — with estate planning. Maybe just start off with the definition: What exactly is estate planning, and why is it so important?
Estate planning is the process of creating an overall strategy to manage and distribute one’s assets, make healthcare decisions, and care for dependents during your lifetime and after your death — ensuring that your wishes are followed, while minimizing taxes and other costs.
Now, I’m only licensed to practice in Colorado, so speaking in Colorado terms, an estate plan usually includes:
- A will
- Sometimes a revocable or irrevocable trust
- A durable general power of attorney — which lets you appoint an agent to make financial or business decisions on your behalf if you become incapacitated or disabled
- A medical power of attorney, which appoints an agent to make medical decisions for you
- A living will, which states your wishes if you’re in a persistent vegetative state (for example, a coma), making it clear that you don’t want extreme measures taken and wish to pass naturally
- A HIPAA authorization form, which allows certain individuals to receive your protected health information from doctors or medical professionals
- And, finally, an appointment of guardian for minor children
Yeah, there’s definitely a lot involved in estate planning. I believe some — but not all — of those documents are always applicable. How does someone know which ones they need?
A lot of times clients come to me and say, “I just need a will.” But once I start asking about their goals, wishes, family dynamics, and long-term objectives, I often end up recommending a full suite of documents.
You want everything covered — every possible contingency that could occur if you become incapacitated, disabled, or, God forbid, pass away.
I’m sure one of the biggest problems is people actually taking that first step to meet with someone like you. But aside from not doing it at all, what are some of the common mistakes or oversights you see when people put their estate plans together?
The biggest mistake is not implementing any estate plan — that’s just not a good idea. Everyone needs one.
Beyond that, common mistakes include:
- Failing to update plans after major life changes or changes in the law.
- Forgetting to update beneficiary designations on retirement accounts, 401(k)s, IRAs, and life insurance policies.
- Paying an attorney to create a trust, but never funding it during your lifetime — which defeats the purpose. If you don’t transfer assets into the trust, it becomes an empty vessel after you pass, and your estate still goes through probate.
Other mistakes include choosing the wrong individuals to serve as fiduciaries, agents, or personal representatives — and failing to communicate your goals with family members.
As with most things in life, communication is key.
Let’s dive into a couple of those. Starting with the first one — not having an estate plan at all. What happens if someone doesn’t have one?
If you become incapacitated or disabled and can’t make business or medical decisions for yourself, someone has to go to court and be appointed as your agent. That process takes time and money — and time is critical in that situation.
If you pass away without a will, your estate goes through what’s called the intestacy statutes in your local jurisdiction. That means everything is distributed according to state law — which may not align with your intentions.
You also mentioned not updating beneficiary designations — like on retirement accounts or life insurance policies. That can lead to assets going to unintended places, right?
Exactly. Retirement accounts, IRAs, and 401(k)s pass outside of probate. Whoever is listed as the beneficiary — by law — will receive those assets. If you’ve had life changes, like a divorce, and don’t update those designations, your ex-spouse could end up receiving assets you no longer intended for them.
That makes sense. So, why do you think people struggle to take that step and get their estate plan in place? Is it just that people don’t like to talk about death, or is there more to it?
A big part of it is that people are afraid to face their own mortality — which is understandable. Some even believe that if they create a will, they’ll “jinx” themselves and pass away soon after. That’s simply not true.
Others think they don’t need a plan yet — or don’t want to spend the money. They kick the can down the road, thinking they’ll deal with it later. But estate planning should be handled as soon as possible and updated as life evolves.
Let’s talk about what happens if someone passes away without a will. You mentioned that the state determines how assets are distributed. Can you explain how that works?
Sure. Speaking for Colorado:
- If the deceased had no spouse, the assets go to the children.
- If there’s a spouse but no children, or if all children are from the same marriage, everything goes to the spouse.
- If there’s a spouse and children from a prior relationship, the estate is split — part to the spouse, part to the children.
That’s where problems can arise. It might not reflect what the deceased actually wanted and can create tension among family members.
If there’s no spouse or children, assets go up to the parents, then out to siblings and extended family. And if there are no living heirs, the property ultimately goes to the state of Colorado.
We’ve talked about assets — but what about a minor child? If there’s no will and no guardian named, how does the state determine who becomes that child’s guardian?
Without a will or appointment document, the court would likely appoint a guardian ad litem to represent the child and begin proceedings to find a suitable guardian.
And if multiple family members petition to be the guardian, the court decides?
Correct. And that’s risky — you could end up with someone you wouldn’t have chosen. It’s time-consuming, costly, and unpredictable. That’s why it’s so important to name a guardian in advance.
Let’s talk about probate. Should the goal be to try to avoid probate whenever possible — using things like transfer-on-death or payable-on-death designations? Or are there times when going through probate actually makes sense?
Here in Colorado, probate usually takes at least nine to twelve months, and you’ll likely need an attorney. So yes — I’m a big proponent of avoiding probate whenever possible.
In my own estate plan, I’ve taken steps to do so. For example, I have TOD and POD designations on bank accounts, and my home is in a revocable living trust — which means it’ll avoid probate when my wife or I pass away.
If a couple owns a home as joint tenants, it will pass to the surviving spouse without probate after the first death, but after the second death, it would go through probate. That’s why I prefer planning to avoid it entirely.
Let’s shift gears to asset protection — why is that such an important part of estate planning, especially for business owners or high-net-worth individuals?
What we practice at Greenspoon Marder is called integrated estate planning — which combines traditional estate planning (focused on what happens after death) with lifetime asset protection.
Asset protection planning means organizing your assets in advance to safeguard them from risks — like lawsuits or creditors. Typically, that involves transferring assets from unprotected ownership (like in your own name) to protected forms, such as limited partnerships, LLCs, or trusts.
Often, we’ll combine entities like an LLC or limited partnership with a domestic or offshore asset protection trust to maximize protection.
It’s crucial that this planning be done before any claim or threat of a claim arises. Doing it afterward could expose the client — and even the attorney — to civil or criminal liability under fraudulent transfer laws.
Asset protection strategies can apply to nearly any asset: cash, investments, business interests, real estate, art, antiques, you name it.
So, when people ask how to protect their assets from taxes, is that part of it?
Not really. Asset protection is primarily about shielding assets from creditors and lawsuits. While there are ways to minimize income or estate taxes, no one can fully protect against the federal government.
Right — they’ll always get their share. Now, I know some of the structures you work with involve offshore trusts. How does that work with the federal government, given that offshore assets can be harder to reach or tax?
Good question. The offshore trusts we create are typically domestic for U.S. federal income tax purposes. They’re considered grantor trusts, meaning all income flows through to the grantor and is reported on their individual tax return each year.
So there’s no tax evasion — everything is above board and reported annually.
I’m sure there’s a cost involved in setting up structures like that. At what level of assets or net worth does it make sense to go through this process versus just taking the risk?
We usually work with clients who have a net worth of at least $3–5 million. But even then, not all assets should be moved offshore. You need to leave enough in your name to remain solvent and pay daily expenses.
Typically, we’ll recommend transferring around 50–60% of assets — depending on the situation. We call it the “nest egg approach.” If the client loses everything else, that nest egg remains protected offshore.
And if that “all hell breaks loose” scenario happens, can clients access those offshore assets? Or do they have to leave them overseas?
Our structures usually include two trustees — one domestic and one foreign. The domestic trustee might be a trusted friend, accountant, or attorney. The foreign trustee is typically based in the Cook Islands or Nevis.
The domestic trustee manages the trust day-to-day. If a lawsuit arises, the client can’t directly access the assets unless both trustees agree. That’s what gives the structure its strength — and protection.
Are there certain types of assets that make more or less sense to include in an offshore trust? What about retirement accounts?
Retirement accounts like IRAs or 401(k)s are already protected and pass outside of probate, so we generally leave them out of the trust. You can name the trust as a beneficiary, but there’s usually no reason to transfer ownership.
Many clients transfer primary residences or vacation homes into an offshore trust or an LLC. For liquid assets like stocks or cash, we often recommend creating an underlying partnership or LLC to provide control and flexibility.
What about business owners — say someone has a partner in their company. Would those assets ever go into an offshore trust, or is this mostly a family-oriented structure?
It’s generally family assets that we focus on for this type of planning. Business ownership structures require different strategies, which we can address separately with other trusts or entities.
If someone goes through the process and later regrets it, can the trust be undone?
Yes, the trustees have authority under the trust agreement to unwind the trust and return the assets to the grantor. It can be dissolved — but our legal fees, unfortunately, are not refundable.
Fair enough. Back to estate planning — how often should someone review or update their plan?
At a minimum, every few years. But any major life event — marriage, divorce, birth of a child, death in the family — should trigger a review. You want to make sure your documents still reflect your current wishes and circumstances.
That’s great advice. Eric, that’s all the questions I had for you today. This has been a really insightful conversation. Thanks for walking us through the importance of proper estate planning and asset protection. For listeners who want to learn more or connect with you, where’s the best place to find you?
My email address is eric.kaplan@gmlaw.com. Our firm’s website is www.gmlaw.com – I can be reached at either of those places.
Great. We’ll link to that in the resources section of the show notes. Thanks again, Eric. And thank you to everyone who tuned into today’s episode. Don’t forget to follow The Agent of Wealth on the platform you listen from and leave us a review of the show. We are currently accepting new clients, if you’d like to schedule a 1-on-1 consultation with our advisors, please do so below.
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