Understand Wills and Estate Planning Documents
As a Paralegal specializing in Estate Planning, I am often asked a lot of questions regarding whether or not a person should draw up a Will or have an Estate Plan. I will give you some advice on why you need a Will and/or an Estate Plan as simply as possible. Now I’m not an attorney, so I strongly advise you to seek the professional advice of an attorney before moving forward in preparing these documents. There are many things you can do prior to meeting with an attorney or paralegal on your own and the better prepared you are, the easier it will be for you when the time comes. This will help cut the cost of attorney billing hours because you will have already done your “homework.”
Planning for the future is more than the mere preparation of a Will . Estate planning involves planning for all aspects of one’s affairs, including planning for the management of personal and financial affairs; the care of parents, spouse and children, designation of valuable items such as jewelry and business succession planning if you own your own business. You may not think you need a Will because you aren't rich or don’t have anything of great value. But the reality is that you do need a Will , especially if you are married, have children or have other family members, have a home, car, boat, travel trailer, family heirlooms, etc.
If you don’t have a Will , in the event of your death, your property will fall upon the responsibility of the state. This is called “Probate.” The Probate Court will determine the disposition of your home, car and other assets as stated above, including your stocks, CDs, investments, checking account or savings account and other financial matters. It can be a very drawn out process and extremely costly. Some Probate matters last years and will literally drain your finances. Also, your wife, children or other family members will be stuck with the bill and left with the burden of determining who gets what and this can be a tremendous strain on them. It can also permanently separate family members because of arguments and tug of wars.
Personal Property and Assets of Sentimental Value
One should consider to whom to leave valuable items and items of sentimental value. Consider making a list before listing them in your Will . This will help avoid disputes among family members. Let’s say you have a family heirloom and you want it to go to a certain family member or even a friend. You’ll want to put this in writing.
Guardianship
This document is to ensure the legal guardianship of your minor children or individuals for whom you are a legal guardian in the event of your death. Of course if you are married, your wife/husband automatically gains guardianship of your minor children. You’ll also need one in the event you and your wife die at the same time such as an auto accident. However, if you are a single parent or even a grandparent who is raising your minor children, you need to determine who will care for your children in the event of your death. If the grandparent has legal guardianship of your minor children, they will need this document in the event of their deaths. Another thing to consider is designating another person to be the legal guardian of your minor children in the event of the death of the first guardian.
Living Wills and Other Health Care Decisions
Consider signing a medical procedure declaration, known as a “Living Will.” It is also known as a “Directive to Physicians.” If you are in a hospital or are planning to have surgery in the future or have had an accident, you will need a Living Will. The hospital will ask you if you have one and if you don’t, they will make you fill out a form. If you are unable to speak for yourself are and married, it is most likely your spouse will have to complete this form. It is wise to already have a Living Will prepared. You or a family member is already stressed out and it’s very easy to make mistakes.
Every state has different laws, however many states, including Texas, have enacted laws governing the expression of one’s desire in the event an incurable and irreversible injury (such as brain damage), or illness is judged to be a terminal condition by an attending physician, who has determined that death is imminent, except for death-delaying procedures such as life supports. A Living Will directs that such procedures are extended, withheld or withdrawn and one is permitted to die naturally, with only the administration of procedures deemed necessary to provide comfortable care. The Living Will is one’s final expression of one’s legal right to refuse medical or surgical treatment and accept the consequences from such refusal. In the absence of a Living Will, the family is faced with the difficult decision with regard to what a family member would have desired such as continuing with life support or not.
Immediate Needs In The Event Of Your Death
It is also recommended to designate a person to be contacted in the even of your immediate death, like your wife or children. If you aren't married and don’t have any children; you’ll want to designate someone who is close to you or perhaps your church or your attorney. It’s a simple form you can do yourself or have an attorney do it for you. You will need to write down their full legal name, home address, home phone number, cell phone number and/or work phone number. It is a wise decision to leave a copy of this form with a trusted friend or family member or your attorney.
You will also need to put down whether or not you wish to have your usable organs donated or have an organ donation card. If you wish to do so, you will need to specify where such donation information can be found, such as on the back of your driver’s license, or in a document located at a specified location.
You will need to stipulate whether or not you have provided direction with respect to artificial life support systems. In this event, if you have provided for the removal of such systems, state where your Living Will or Statutory Power of Attorney can be found. Specify the person you wish to be contacted immediately; if that person cannot be reached, provide another contact person. You will need to provide the name, address, phone number and emergency phone number of your physician, and where you wish your remains to be delivered.
If you wish your remains to be buried or placed in a mausoleum. If it is your desire to be cremated, where or how you wish them to be disposed of and by whom. It is also important to put down the funeral home information; whether or not you've made arrangement with the funeral home, along with the necessary prepayments and where the documents can be found. List the arrangements you have with said funeral home; whether or not you wish a private service or open visitations and where you wish the service to be held. This is a valuable document because everything has been taken care of in advance and saves on confusion and stress from your passing. It is advised that you also keep a copy of this document in a safe place. Everything you need for your funeral arrangements from what type of burial container you wish to be buried in, to what you wish to wear and where they are located; who you wish to be pall bearers; who you wish to be notified regarding your funeral, etc., is all in this one document.
STATUTORY POWER OF ATTORNEY
This document pertains to unforeseen events in which you are unable to make decisions on your own, have been diagnosed by your physician to be incompetent to make decisions, are in the hospital under the circumstances that you will not regain consciences or upon your immediate death. A Statutory Power of Attorney is a legal way of giving someone the power to handle your affairs. That person can be an attorney, a loved one, even a friend. However, it should be someone you trust completely because this person will be handling all your financial matters such as paying your rent or mortgage, your checking and savings accounts, credit cards, the handling of your property and other matters of great importance. Basically, you are giving this person all control over matters you would normally handle.
I highly suggest you have a Statutory Power of Attorney done for any family member suffering from an illness, including yourself. Let's say that you require numerous operations, suffer a stroke or heart attack, are suddenly in a terrible car accident and can't speak for yourself. Your immediate family will be able to speak for you on your behalf. But what if you are single, and have no family? A Statutory Power of Attorney will see that you get the proper care and treatment, and make certain that your financial matters are handled properly.
In addition, if you have an elderly parent(s) who can't handle his/her own affairs any more, they can name you their power of attorney. Once this is done, you have legal authority to handle all of their affairs.
Now that you've got an understand of what estate planning is, you are well on your way to preparing your documents with or without an attorney. I've prepared estate planning documents for many of my clients, and once they were done they could relax knowing that everything has been taken care of in advance.
Always keep your Will and other valuables in a safe place like a safety deposit box at the bank or at your home. Make sure you read over your Will before signing it. Whether or not you hire an attorney to do your Will , make sure you check with your state or county to find out how many witnesses you need to sign your Will . Always get it notarized by a Registered Notary Public in your state and county.
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