Frequently Asked Estate Planning Questions
Why Do I Need A Will?
If you do not have a Last Will and Testament in place when you die, the State will decide who gets your assets. A will is a document that lets you protect your assets and control to whom you want your assets to go to when you pass away. A will is important at many different stages of life for many different reasons. A will is especially important to anyone with young children, because a will is the best way to appoint guardianship of your children if you should pass a way. You may also want to set up a simple trust clause in your will that will appoint a trustee to make sure your minor children get the benefit of your estate when they need it.
A will is also useful in preventing confusion as to which heirs get what property. A will states in plain language whom is to be given what property and/or assets upon your death. Many times when a family member dies without a will, fighting and feuding occurs that can rip apart families.
Do I need an attorney to draft my will?
There are resources available to draft a “do-it-yourself” will and living will on the internet or at your local Wal-Mart, but you get what you pay for. An attorney studies law for many years and has experience seeing how probate matter play out in real life. You may not have the knowledge needed to create a legal and error-free plan and you may not be aware of recent changes in the law. With the help of an attorney, you will be able to customize your will to your concerns and have the peace of mind that your assets will be protected after you pass away.
Can I Change or Add to My Existing Will?
It is important to review your will every 5 years or so. Your life, and the law, is ever-changing. You may have more children or become a grandparent and want to make sure you leave something for them, or you may have a falling out with a relative or get a divorce. These are common changes in life that may at some time effect you and your estate planning.
Adding or subtracting to your will can be done and it is not always a difficult thing to do. Consult your attorney and they can walk you through the process and make sure you feel comfortable with your decisions.
What is a Living Will and Why Is It Important?
A living will is a document that contains a statement or statements of your wishes for the types of life-sustaining medical attention you want, or in some cases, do not want when you become terminally ill and cannot communicate your wishes on your own. A (DNR) or Do Not Resuscitate Order is also a form of living will in which a person chooses not to be kept on any artificial life support if they are terminally ill.
In my practice, I always like to have my client’s appoint a Health Care Agent, a person that knows your wishes as expressed in your living will, and acts as a medical Power of Attorney. A Health care Agent also is granted the power to make medical decisions on your behalf if you are unable to make them yourself.
Choose your Health care Agent carefully. This person (usually, but not always, a spouse) should be able to handle the stress of making difficult medical decisions for you and should always have your best interests, and wishes, in mind.
Do I Need to Appoint A Power of Attorney?
Granting a person a Power of Attorney allows that person to act as your “agent”, or on your behalf, to make financial decisions for you when you are unable to do so. This power allows your agent to sign your name and make financial decisions that they deem in your best interest. This is a very power instrument. This document becomes very important if you become incompetent because of a temporary injury or a more serious infliction such as Alzheimer’s and you lose the requisite decision-making ability or capacity to pay your bills, managing investments or handle your daily finances.
Two of the most common types of Power of Attorneys, or POA’s, are:
- Springing Power of Attorney: This document only goes into effect under certain circumstances that you specify, typically when you become incapacitated and often requires a doctor’s note to prove that diagnosis before the POA can be granted authority.
- Durable Power of Attorney: This document grants authority immediately and does not need any additional documentation or authority to back it up.
It is important that you note that a Power of Attorney grants authority to your agent only while you are living and automatically loses its power to act as your agent after your death.