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Information about Wills, Living Wills and Powers of Attorney

WHAT DOES A WILL DO?

The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will.  The importance of a will cannot be overstated.   A will is perhaps the most important legal document a person ever signs.   Yet, over 70% of American adults do not have a will.   A will is a legal document designating the transfer of your property and assets after you die.  Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as "being of sound mind and body."

WHO NEEDS A WILL?

Although wills are simple to create, about half of all Americans die without one (or Intestate).   Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state.  Wills are not just for the rich; the amount of property you have is irrelevant.  A will ensures that what assets you do have will be given to family members or other beneficiaries you designate.  If you have no apparent heirs and die without a will, it's even possible the state may claim your estate.

Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death.  Without a will, the court will appoint a guardian for your children who may be someone you do not even know.

WHAT ARE THE ELEMENTS OF A WILL?

What you generally need to make a will:
  • Your name and place of residence;

  • Names and addresses of spouse, children and other beneficiaries, such as charities or friends;

  • Alternate beneficiaries, in the event a beneficiary dies before you do;

  • Name and address of an Executor/ Executrix to manage your estate;

  • Name and address of an alternative Executor/Executrix, in the event your first choice is unable or unwilling to act;

  • Name and address of a guardian for your minor children;
  • Name and address of an alternative guardian, in the event your first choice is unable or unwilling to act;

  • The age you wish your minor children to have control of their inheritance;

  • Any burial requests you may have (cremation, where you want to be buried, etc.);

  • Your signature;

  • Two Witnesses' signatures; and

  • Notarization.
Two of the most important items included in your will are naming a guardian for minor children and naming an Executor/ Executrix.

WHAT IS A GUARDIAN?

In most cases, a surviving parent assumes the role of sole guardian. However, it's important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act.  The guardian you choose should be over 18 and willing to assume the responsibility.  Talk to the person ahead of time about what you are asking.  You can name a couple as co-guardians, but that may not be advisable.  It's always possible the guardians may choose to go their separate ways at some later date, and, if so, a custody battle could ensue.  If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.

WHAT IS A EXECUTOR/EXECUTRIX AND WHAT DO THEY DO?

An Executor/Executrix is the person who oversees the distribution of your assets in accordance with your will.  Most people choose their spouse, partner, an adult child, a relative, or a friend to fulfill this duty.

If no Executor/Executrix is named in a will, a Probate Judge will appoint one.  Probate refers to the legal procedure for the orderly distribution of property in a person's estate.  The Executor/Executrix files the will in probate court, where a Judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will.  If the will is found to be invalid, assets are distributed in accordance with state laws.

Responsibilities usually undertaken by an Executor/Executrix include:

-- Paying valid creditors; -- Paying taxes;

-- Notifying Social Security and other agencies and companies of your    death;

-- Canceling credit cards, magazine subscriptions, etc.; and

-- Distributing assets according to the will.

WHAT ABOUT UPDATING MY WILL?

You'll probably need to update your will several times during the course of your life.  For example, a change in marital status, the birth of a child, or a move to a new state, should all prompt a review of your will.   You can update your will by amending it by way of a Codicil or by drawing up a new one.  Generally, people choose to issue a new will that supersedes the old document.  Be sure to destroy the old will after you sign a new one.

WHAT ABOUT ESTATE TAXES?

The property included in your will may be subject to taxation. In planning your will, take into account the following:


-- State death or inheritance taxes

-- Federal income taxes

-- State income taxes

You may be able to minimize your estate tax by establishing a trust or giving gifts during your lifetime.  You can also cover the cost of estate taxes by purchasing a life insurance policy intended to pay taxes.  Talk to your life insurance agent to find out more about how this works.

WHERE SHOULD I KEEP MY WILL?

Once your will is written, store it in a safe place that is accessible to others after your death.   We suggest that you keep your will and other important documents in a fire proof box that you can purchase at any office supply store.  Make sure a close friend or relative knows where to find your will.

WHAT IS A LIVING WILL?

A living will is not a part of your will.   A living will (also known as a advanced medical directive) is a written document that authorizes the providing, withholding or withdrawal of life-prolonging procedures in the event you have a terminal condition.  A terminal condition may mean either that your death is imminent, or that you are in a persistent vegetative state.   It becomes effective only when you cannot express your wishes yourself.  

It is important to understand that just because you prepare an living will does not mean that you will be unable to receive pain medication. A living will pertains to treatments that artificially extend your life, not to procedures or medicines needed to provide you with comfort or alleviate pain. 

A living will is different from a health care power-of-attorney in that a living will does not appoint an agent.  A living will also applies only to cases of terminal illness, whereas a power-of-attorney may apply any time you are unable to make an informed decision about your medical care.

Like completing a health care power-of-attorney, preparing a living will can help ease the confusion and conflict that may arise among your loved ones if you become terminally ill.   It can also help assure that the power to make these important decisions is yours, and not the Commonwealth’s, as a living will serves as the final expression of your legal right to refuse or to authorize medical or surgical treatment.

It is your responsibility to make sure that your health care providers know that you have made a living will.  If you are unable to do so, however, someone else may tell your doctor that you have prepared a living will.  Be sure your family knows as well.   You should make copies of your living will and give them to all the people who may need them.    For example, you should consider giving copies to your doctor or other health care professionals, family members,  and hospitals.   Also, be sure to keep the signed original at home with your other important papers.   Talk to your doctor to be sure he or she understands your choices and will respect your decision. Your living will should be made a part of your medical record.

WHAT IS A POWER OF ATTORNEY FOR HEALTH CARE (HEALTH CARE PROXY)?

A power of attorney for health care (health care proxy) is not a part of your will.    A health care power-of-attorney is a separate document that gives your agent the power to make decisions based on your stated preferences or your best interests.   It becomes effective only when you cannot express your wishes yourself.  

If you choose not to make a health care power of attorney, the law specifies who your doctor should turn to for medical decisions. The following persons, in the specified order, will be asked to make your treatment decisions: a guardian (if you have one), your spouse, your adult child, your parent, your adult brother or sister, or any other relative. They must take into account any preferences you have expressed, your religious beliefs and values, and your best interests. If another person does not agree with the medical decision, he or she may ask the court where you reside to review the situation. If you wish to avoid disputes or confusion about your care and treatment, it is better to have a health care power of attorney.

It is your responsibility to make sure that your health care providers know that you have made a health care power of attorney.  If you are unable to do so, however, someone else may tell your doctor that you have prepared a health care power of attorney.  Be sure your family knows as well.   You should make copies of your health care power of attorney and give them to all the people who may need them.    For example, you should consider giving copies to your doctor or other health care professionals, family members,  and hospitals.   Also, be sure to keep the signed original at home with your other important papers.   Talk to your doctor to be sure he or she understands your choices and will respect your decision. Your health care power of attorney should be made a part of your medical record.

WHAT IS A FINANCIAL DURABLE POWER OF ATTORNEY?

A financial durable power of attorney is not a part of your will.  It is a separate document that authorizes someone you name to act in accordance with your financial intentions.

It becomes effective only when you cannot express your wishes yourself.   If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you.  People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law.   If a court proceeding is needed, than you may not have the ability to choose the person who will act for you.  With A power of attorney, you choose who will act and define their authority and its limits, if any.  You should make sure that all your financial professionals (stockbrokers, accountants, financial planners) and banks have a signed copy.

PLAN AHEAD?

The end of your life is something you probably don't want to dwell on, but thinking about what will happen to your loved ones and your assets and personal possessions is important.  Making sure you've done all you can to make their lives easier will give you peace of mind. And once your will is drafted, you won't have to think about it again unless something significant in your life changes.

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The Law Firm of Needham Mitnick & Pollack, PLC

400 S. Maple Ave.
Suite 210
Falls Church, VA 22046
Phone : 703-536-7778
Fax     : 703-536-2452

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