It is important to document our desires so that they can be carried out after we transition. Most of us know what a Will is (or our “Last Will and Testament”) but we’re often not sure how to create one. One decision we need to make is whether to write it ourselves or to hire an attorney. Most people can write a simple will without a lawyer, but some situations require professional help.
Some examples where a lawyer might help are:
- Large assets that might be subject to estate taxes
- Leaving property to a trust instead of individual(s)
- Shared business ownership
- Long-term care for a disabled beneficiary
- If you feel someone might contest the terms of the will
- If you want to specifically disinherit someone
- If you choose to use an attorney it is still helpful to familiarize yourself with the laws and clarify your desires in advance.
There are a number of software options and templates available for creating your will. And there are publications with a variety of clauses that you can add. In any case, it’s best to create a formal typed document. Handwritten wills are permitted in some states, but a formal, typed document is less likely to cause trouble or confusion.
What to Include
A will should clearly reflect the wishes of the will maker. Most people use a will to distribute their property after they die.
A will can also:
- Name the executor of your estate.
- Name guardians for minor children.
- State how to pay debts and taxes.
- Provide for pets.
- Serve as a backup for a living trust.
- Include a letter to be read at the time the will is read.
- Making Your Will Legal
Signing Your Will
Have two witnesses sign your will. (Note: Witnesses do not need to see the content of the will.) In most states, have a notary sign a self-proving affidavit – this is optional but a safer option to avoid possible conflict. Another option is a Living Trust, a written legal document through which your assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your transition by your chosen representative, called a “successor trustee.” A Living Trust avoids probate and is kept private ( a will is a public document). But in the case of most simple estates, a will is sufficient. Be sure to consult a professional if you want to pursue this option. There is also an option for a Testamentary, a Trust that is created by your will upon your death. It may be a good idea to leave assets in a trust for children until they reach a certain age. Or if you leave assets to someone who might not be fiscally responsible, a trustee can have some control over the disbursements.
Choosing an Executor
The Executor of your estate is your legal representative after you transition. (“Power of Attorney” is your representative while you are still alive but incapacitated.) This person handles the distribution of your will and other legal and financial matters. It can be a trusted relative or can be assigned to a bank or attorney (for a fee). Since closing out an estate can be arduous and time-consuming it is not uncommon to compensate an executor even if they are a family member.
Power of Attorney
A power of attorney is a written authorization for someone to represent or act on another’s behalf in private affairs, business, and most legal matters if the person becomes incapacitated. Establishing this in advance, while still healthy and able to make clear decisions, enables another person to control legal and financial affairs when the grantor of the power of attorney becomes incapacitated.
A living will allows you to document your wishes concerning medical treatments at the end of life if you are unable to make decisions or communicate your wishes. Though you do not need an attorney to complete an Advance Directive, the laws and terminology vary state by state so it’s important to understand what is required in your location. A medical power of attorney (or health care proxy) allows you to appoint a person you trust as your health care agent (or surrogate decision maker), who is authorized to make medical decisions on your behalf.
Before a medical power of attorney goes into effect a person’s physician must conclude that they are unable to make their own medical decisions. Emergency medical technicians cannot honor living wills or medical powers of attorney. Once emergency personnel has been called, they must do what is necessary to stabilize a person for transfer to a hospital. HIPAA release. The Health Insurance Portability and Account Act is a law keeping medical records confidential. Be sure someone of your choosing is able to learn of your medical condition and access your medical records if needed.
More info on Advance Directives including a link to state-by-state advance directive info: http://www.caringinfo.org/i4a/pages/index.cfm?pageid=3285
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