How to Understand Wills and Estate Planning Documents

Estate Planning: As a Paralegal specializing in Estate Planning, clients often asked a lot of questions regarding whether or not a person should have 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. First of all, when people hear the term "Estate Planning", they often think you have to have a big estate like the people on the TV show "Dallas." That is not true. Your estate is your home and belongings, your money, your business or business affiliations, etc. It can be complicated or simple, depending on your particular needs and desires. Now I’m not an attorney, so I strongly advise you to seek the professional advice of an attorney or legal expert 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 and paralegal billing hours because you will have already done your “homework.”

Difficulty: Challenging

Instructions

Things You'll Need:

• List of all personal and valuable articals, including assets.
• Designated Guardian of your children.
• Designated person to leave your Will with for safe keeping.

1. 
    
   Will and Jewelry

   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 (in which case you will need a Trust Agreement). 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. No matter what it is, you will want to designate who gets what and how it's handled.

2. 
    
   Tug of War

   Why do you need a Will? Because 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. Probate Court is a complicated process and all states are different, but the Probate Court could very well decide where you are buried and how.

3. 
    
   Make a List of Items

   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 to avoid disputes.

4. 
    
   Your Children

   Guardianship of Your Minor Children: 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. However, you’ll also need one in the event you and your wife die at the same time, such as an auto accident. Additionally, if you are a single parent or even a grandparent who is raising 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.

5. 
    
   Living Will

   A Living Will: 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 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.

6. 
    
   Physician's Determination

   Another Reason for a Living Will: Every state has different laws, however many states, including Texas, have enacted laws governing the expression of one’s desire in the event of 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.

7. 
    
   Life Support

   If you have provided for the removal of such life support systems, be sure to state where your Living Will or Statutory Power of Attorney can be found. Again, 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, telephone number, cell phone number and emergency phone number of your physician, and where you wish your remains to be delivered.

8. 
    
   Father Gives Son His Will

   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, a family member or your attorney.

9. 
    
   Organ Donation Card

   Organ Donation: You will also need to write 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.

10. 
     
    Power of Attorney

    A General or 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 General or 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 your checking and savings account, credit cards, the handling of your property and other matters of great importance. Basically, you are giving this person control over all your personal and financial matters that you would otherwise handle yourself.

11. 
     
    Cemetery

    In the event of your death, you may also want to write down whether or not 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 prepayment 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. Again, keep it in a safe place, give a copy to a family member or trusted friend or give it to your attorney to be kept in your file.

12. 
     
    Safety Deposit Box

    Keep your Will and other valuables in a safe place like a safety deposit box at the bank or at your home.

13. 
     
    Check for Accuracy

    Always read over your Will before signing it to ensure its accuracy. If you need to make revisions, make notes and tell your attorney.

14. Trust Agreements: I don't want to get into great detail about Trust Agreements because these can be very complicated and I don't want to confuse you. The bottom line on a Trust Agreement is that, in some cases, people who have huge amounts of assets like a business may require a Trust Agreement. Check with your attorney if you are considering having a Trust Agreement. There are all kinds of Trust Agreements, so be sure to get your attorney to explain each one to you to ensure the best agreement for your particular needs.

Tips & Warnings

• 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. Some states require 2 witnesses and others require 3 witnesses.
• Always get it notarized by a Registered Notary Public.
• Never attempt to do your own legal documents without first consulting with an attorney or legal expert.

[Thims]

on 10/13/2008 Excellent well-researched article. Crammed with legal stuff to think about, but neccessary. Great topic!