Estate Planning---more than a Will
DISCLAIMER: The information on this page is NOT to be construed as legal advice, and is only provided to help our clients/customers better understand the nature of our services and consultations. Legal decisions should NOT be made without consulting an Attorney.
Will: at its most basic level a Will is a legal document that details who you (Testator) wish to devise (give) your property when you die. However, a Will is not a final solution as it most typically only controls where your probate property goes when you die and has no bearing on non-probate property. Most property in modern times passes through non-probate procedures; that is without any involvement of a court when you die. A Will is only one piece of the puzzle to ensure the smoothest transition of property ownership when you die, but the Will in of itself is not necessarily needed. Not needed? Many of us in the military have been told every time we are about to deploy or go on an exercise that you must go to legal and get a Will, but this is simply not true.
NOTE: If you are married to a partner of the same-sex you may want to execute a Will due to many states still having discriminatory laws that would prevent your spouse from inheriting under an intestacy statute.
A Will does NOT have an expiration date and survives in perpetuity until the testator revokes it by destruction or executing a new Will, or modifies it via a codicil. The Legal Assistance Office drafts them in a manner that you do NOT need to redo it every time you have a new child or purchase new real estate.
Myths About Wills:
1. If you do not have one, the State will take your property when you die?
FALSE. Every state has what is referred to as an Intestacy Statute (no-Will), which determines who will inherit your property when you die. These statutes are almost always in alignment with what the average person wants; thus, making Wills in many cases unnecessary. As an example, in most jurisdictions:
- If you are single with no children your parents will inherit your property in equal shares.
- If you are married with/without children your spouse will inherit your property in full (few states a spouse will share with children)
- If you are a single parent your children will inherit your property in equal shares
- If you have NO family alive all the way out to your third cousins then the state may inherit your property.
2. If you are in the military you MUST get a Will?
FALSE. Your command cannot make you get a Will it can only require you to seek legal consultation regarding estate planning so you can determine whether you need/want a Will. A Will is a legal document that must be executed voluntarily or it is likely considered voidable in court. Further, you must be able to swear under oath during the execution of the document that you are executing it free of coercion or undue influence.
3. Everyone should get a Will?
FALSE. Many people do not need a will and you can typically allocate your property assets to pass outside of probate. The following people should consider getting a Will or at least consult with a Legal Assistance Attorney:
- If you have more than $500,000 in probate assets (NOT life insurance, IRA, mutual funds)
- If you have children and wish to nominate a guardian/conservator if both parents die
- If you do not like the standard distribution of your state
- If you want to disinherit a family member, i.e. a parent that was not involved in your life
- If you want specific tangible personal property going to specific individuals
Examples of Probate Assets (controlled by Will) are Real Estate and Stock Certificates
Examples of Non-Probate Assets (pass outside of court) are Life Insurance, Mutual Funds, IRAs, TSPs, 401(k)'s, automobiles, and personal tangible effects.
Advance Health Care Directive / "Living Will": this document is often termed as a declaration for a natural death as well. In a situation in which physicians have determined that you are in a terminal condition, will not recover, and cannot sustain life on your own without artificial life support, this document states your preference as to whether the physicians should allow you to die naturally.
If you have a strong preference regarding this situation, the document can be beneficial because it can remove the decision from family members. This document can help save the pain of court battles in the future, or emotional toll on your family members if the decision is left to them.
Durable Power of Attorney for Health Care: this is a legal document that will allow you to designate one or more agents to make health care decisions for you if your medical condition causes you to be legally incapacitated or incompetent so that you cannot make your own decisions. Further, the document will cite your desires regarding organ donation and/or whether you would prefer to die at home rather than in a hospital.
It should not be assumed that your spouse or next of kin will automatically be able to make these decisions in the event of your incapacitation. This document can prevent the need to go to court to determine the legal authority to act.
Springing Durable General Power of Attorney: unlike a standard General Power of Attorney that Legal Assistance Attorneys highly discourage, this type of General Power of Attorney can be of vital assistance during a time of incapacitation. To understand the nature of this document, we must break down its name:
- General Power of Attorney- a power of attorney that provides extremely broad authority for your agent to conduct any and all business on your behalf (during most times this is not a good idea)
- Durable- these clauses in a power of attorney mean that the appointment survives incapacitation. For example, a normal power of attorney would automatically be revoked by operation of law if the Grantor became incapacitated because it can only be effective as long as there is an ability to revoke it. (these clauses are typically best for health care and stand-by guardian powers of attorney)
- Springing- this is the operative phrase that makes this a good General Power of Attorney. It means that the appointed power will only "Spring forth" if and only if the Grantor becomes legally incapacitated, i.e. coma or other condition that causes legal incompetence.
When you are incapacitated, this power of attorney will give your agent the ability to handle all of your personal financial and business affairs in your stead until you recover.