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Because Life Can Change in a Heartbeat…Everyone Needs a Will

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By Len Garza – Special Counsel

Everyone needs a Will. But let’s face it, many people shy away from this task because it seems unpleasant. Or they just simply procrastinate, thinking they have all the time in the world.

But life can change in a heartbeat. And once a family is in crisis mode, their emotions can make it difficult for them to think and act prudently. Not having a Will means that your loved ones will have no direction about what to do with your assets when you have passed—or that you will have no say about who gets what when you die.

The State Takes Over

In fact, if you die without a Will, the state takes over and distributes your assets according to a set formula. It can never take into account the idiosyncrasies and nuances of family relationships or any preferences you may have about who will receive your belongings from your house to your car to your money. Or the necklace passed down from your great-grandmother which you wanted your oldest daughter to have. Your Baby Grand piano that has provided your family with hours of fun family sing-alongs, and you wanted your musically talented son to enjoy it in the years ahead. Or, your Nikon which has captured many wonderful memories and would be best in the hands of your younger daughter, the one who knows the composition of a photo when she sees it? 

As important, what if something untimely happens to you and your spouse, and your children are still minors (younger than 18 years old)? Who will be their guardians and provide for them? 

The Cornerstone of Your Estate Plan

A Will, or your Last Will and Testament as it is properly named, is often the cornerstone of your estate planning. It is a legally enforceable instrument that addresses all these important matters and provides clarity about your wishes. In addition to providing instructions about how you want your property and assets distributed, it is also the document through which you can appoint a guardian for your minor children. 

Your Will also appoints the person, an executor, who will manage your estate when you die. This person works with an estate attorney on a range of issues paying down debt, your final bills and taxes, investing and selling assets in the estate and distributing assets to your beneficiaries once your estate is settled.

Communicating With Your Adult Children

Family conversations in which you discuss your end-of-life wishes with your family are one of the best ways to prepare for drafting your Will. You might say that these preparatory conversations are a mutual obligation that parents and adult children share. Parents have a responsibility to make their personal wishes clear to avoid missteps. Grown kids have a responsibility to do the right thing for their parents and provide them with the certainty of knowing that their wishes will be carried out.

It’s not to say that these conversations are easy. They surely can be sad and scary.  As uncomfortable as it is to talk about money, they go beyond asset distribution to mortality issues and the level of care you wish to receive if your health deteriorates, and you become incapacitated. But when all your family members are in good health and looking ahead to a bright future, the conversation can be directed in the rational way you would direct any business meeting. Only in this case, your discussion is focused on delicate family matters.

NO Will DIY. Meet With an Estate Attorney.

One approach is to hold a meeting like this at your estate attorney’s office. When it comes to executing your Will and other estate planning documents, it’s wise to consult with an experienced estate planning attorney as opposed to attempting this important planning on your own. Though people are increasingly attacking many tasks DIY today, asset distribution and end of life planning can have intricacies that the more formulaic approaches of online applications may overlook. Most trust and estate attorneys will tell you that DIY Wills and other estate planning documents may contain pitfalls that end up costing families significant stress and money. An experienced estate planning attorney has knowledge of unique estate issues that may arise and the differences between laws and requirements state-to-state. They also have the experience to understand the delicacy of these discussions.

Their objectivity is also helpful in guiding the decisions in which you appoint children to assume various roles. For example, when you draft your Will you will have to appoint an executor. This role requires a good deal of responsibility, particularly in matters of paying bills and managing money.

Two companion documents

It’s important to mention two other roles that will grow out of these discussions. The documents attached to these roles are necessary companion documents to your Will:

  • Durable Power of Attorney (POA) – This document will allow the named individual to make financial and business decisions in the event a person is incapacitated. This might involve paying bills or liquidating a portion of assets to pay an acute care facility, even selling your home. A person who is capable in managing money is best suited for this role. High ethical standards are also a must.
  • Healthcare Proxy (Healthcare Power of Attorney) – This document goes beyond the broad-ranging discretion of the Durable Power of Attorney and allows the appointed person to step in to make medical decisions. There’s a delicate balance in determining when quality of life has diminished too far and when there may be a point of receiving too much care. It is helpful to share your feelings about this with your family so they will know if and when to cease aggressive medical intervention sooner.

The point of this preparation and these documents (e.g., Will, Power of Attorney and Healthcare Proxy) is to avoid the anger, hurt or quarreling that can occur when family members do not have a clear understanding of what you want at a time when they are experiencing feelings of loss.

Where’s the Will?

One last important detail: keep your Will and other documents in a safe place and inform your family what that place is. You want the documents in easy reach when the time comes to access them. Asking that your estate attorney take care of them is another good idea to ensure safekeeping. In fact, that’s another deficit that can occur when people execute their Wills on their own. They may forget or fail to let anyone know where the Will is located. A missing Will is the same as having no Will at all.  

Not One and Done

Creating these documents is not a one-and-done occurrence. Life happens.  You buy a house.  You sell a house and buy another.  You get married; divorced, and possibly married again. You have children. Your young children grow up, become adults, move out of the house, have kids of their own. These are only a few of the ways life changes. There are so many more occurrences unique to your individual circumstances that the rule of thumb is that your Will requires review at least every five years.

Beyond that five-year assessment, there are trigger events that require you to update your document:

  • If you are newly married, you and your spouse should have your Wills updated because couples commonly appoint each other the executor of each other’s Wills;
  • If you are recently divorced and no longer want your ex-spouse to serve as your executor, that language and any other language in your Will that may impact that decision will need to be reviewed and revised;
  • If you experience a windfall from a lucrative investment or a business you’ve successfully started, you will want your Will to be reviewed and updated;
  • If you have started a family, you must review your Will to make certain you’ve appointed appropriate Guardians to take care of your minor children.

You want your Will to reflect your current wishes, not the wishes you had five, 10, or 15-plus years ago. Life changes on a lot of levels—anything from family relationships, friendships, business dealings or financial status.

At The Nan Gallagher Law Group, we have the expertise and the sensibility to guide you through the process of attending to all your necessary Will inclusions. Our guidance is always crafted to serve your specific needs.

Call us at 973.998.8494 to schedule an appointment to prepare and/or review your Will. Experience the confidence of knowing you are giving one of the most priceless gifts you can give to the people you care about most.

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