What Everyone Needs to Know About Wills and Living Wills?
A Few Preliminary Questions.
What is a will?
A Will is a document by which a person can direct how his or her property will be distributed or disposed of upon death. While each state has different legal requirements for what constitutes a valid will, all states recognize a person's right to create a will.
What is a living will?
A "living will" is not truly a will in the traditional sense because a "living will" is a directive to physicians and other health care professionals regarding how you are to be cared for while living. Again, each state has different requirements for a "living will", but most typically you can direct what medical treatment you will receive, the extent to which you are to be kept alive by artificial means, and other similar health care concerns.
What other documents might I need?
There are two other documents you should consider: (1) a Statutory Durable Power of Attorney, and (2) a Medical Power of Attorney.
A Statutory Durable Power of Attorney (POA) is a generaized Power of Attorney for financial, tax, real estate and other business affairs. The POA allows you to appoint someone who has the full legal authority to act on your behalf and in any matter you specify. Typically, you can make the POA as broad or as narrow as you desire. You can also designate that the POA is not effective unless and until you become incapacitated to protect from anyone acting for you while you are competent.
A Medical Power of Attorney is fairly self explanatory. It is a legal document in which you designate a person to make health care decisions for you should you become incapacitated. It is different from a "living will" in that the person designated in the Medical Power of Attorney has the legal authority to make health care decisions for you; in the "living will", you have previously directed how health care professionals are to provide treatment should a decision need to be made about sustaining your life and by what means.
Do I Need a Will?
The short answer is, "Yes". Anyone who owns any property to speak of, particularly "titled" property (property which legal ownership is evidenced by a Title document, e.g. a car or house), should execute a will.
All states have intestacy laws-rules for dividing the property of a person who dies without a will (or, intestate). If you die intestate, then ownership of or title to your property will be determined your state's intestacy laws.
It is a common misconception that only the wealthy need a will. While a person with a significant amount of property will invariably need a will, it is just as important for a person of limited means. Here is an example from personal experience (I am an attorney), and not that uncommon an example, by the way:
- John, a 50 year old man, is the youngest of five children. John walks into his attorney's office because he wants to sell a house he believes he has inherited from his parents. John's parents did not have a will, but everyone (parents and siblings included) agreed years ago that John could have the house. Only John and one older sibling survive. John's three older siblings each died with four, three, and four children respectively. Of the oldest sibling's four children, three survive and one has died with two children. In many states, Texas included, because John's parents died intestate, in order for John to now sell the house, John must track down fourteen signatures (John, who legally owns a 1/5 interest in the house, his surviving sibling, 1/5, the ten surviving nieces and nephews, several of whom own a 1/20 interest and several of whom own a 1/15 interest, and the two surviving children of the predeceasing neice or nephew, each of whom own a 1/40 interest) to sell the house and transfer clear title. This assumes they will all do so willingly, as they are legally entitled to their respective share. It can very easily become a mess.
Actually, leaving clear title is as much a reason to execute a will as any other because trying to clean it up after the fact can be more trouble than it is worth.
Also, to the surprise of most people, administering an estate is typically easier to do if a will has been executed. Many states now have simplified probate procedures for small estates or estates where a valid will has been executed. In most cases, a will that has been executed according to the law of the state in which it is executed will contain self-proving mechanisms, usually an affidavit, which can avoid lengthy court proceedings and limit the need for witnesses at probate hearings.
If you have a sizeable estate, you can also consider incorporating a trust into your estate planning package. For the purposes of this hub, you can create a testamentary trust as a part of your will. A testamentary trust could have tax advantages for your estate and/or the trust beneficiary. You can also restrict, within limits, the benificiary's access to the funds you leave them. This would be appropriate for a minor, a person with special needs, or anyone who you worry might be less than responsible with their inheritance.
Do I Need a Living Will?
As much as "living wills" have been in the news lately, the answer would seem fairly obvious. However, given the personal nature of this type of decision, I will leave the ultimate answer to you.
If, however, you do not want artificial or extraordinary measures to be used to sustain your life, should it become necessary, then you should execute a directive to physicians, or "living will".
If you have executed a Medical Power of Attorney, you may still need to execute a directive to physicians because the authority granted in the Medical Power of Attorney may be limited when it comes to life sustaining measures.
How Do I Make a Will or Living Will?
The simplest way is to contact an attorney in your area who specializes in estate planning or wills and trusts. There are numerous do-it-yourself software programs available to you, but remember that each state has specific legal requirements for these documents to be valid. These DIY programs may claim that they can fulfill the requirements of your state, but not all of them do.
The price tag is tempting, but you will likely save money in the long run by having an experienced attorney prepare the documents for you. If you choose to use DIY software, choose wisely.
Also, most states recognize "holographic" wills (wills that are written in the testator's own hand), but it is more difficult to prove a holographic will valid than one executed with the formalities required by the law. Typically, a will has to be signed before two independent witnesses and a Notary Public.
Save yourself the time and the stress of trying to make sure you comply with all of the legal requirements and hire an attorney. Most attorneys who prepare these documents frequently have state-specific document preparation software which saves time and expense.
- Make an appointment with an attorney in your area. Ask about all of the options available in your state. Decide what documents you need and have your attorney prepare them for you.
- When your attorney prepares your documents, be sure to obtain enough originals and copies (depending on who requires what) for your physician(s), hospital(s), and anyone who might be named in the documents as a decision maker. You should also have a few extra just in case.
- Spouses typically name their spouse as the decision maker, but you should consider naming alternates in the event both spouses are incapacitated at the same time. An eldest child or a trusted sibling are most common. Be advised, most states will have a minimum age for someone acting under a Power of Attorney.
- Discuss these choices with anyone involved. Do not appointment someone to make difficult decisions who has difficulty making decisions. Ask that person if they are (1) willing, and (2) capable. This is very important!
- If you have also executed a Statutory Durable POA, you should deliver an original or copy of it to your financial institutions and the like.
- Many hospitals now provide these medical related documents for your execution prior to a hospital stay. If you know that you will be spending time in a hospital for surgery or otherwise, you should ask your hospital about the documents you wish to execute. As we do not always know when a hospital stay will be required, it would be wise to have these documents prepared ahead of time.
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