To Will or Not To Will, That is the Question

[easysurfer]

Prince dying with (what looks like) no will is a wake up call for me.

I have an outdated will, but am going to create an updated one with my current wishes.

For a will, are naming a Power of Attorney and naming a Health Care Agent a requirement? Or are they very important but not required documents that make the "meet my maker" process go a lot smoother?

 

[Big_Hitter]

I don't think they are required but are "very important". I think your will does have to specify a PR though.


<----not an atty

 

[hakuna matata]

Timely thread--we just updated our wills, etc. yesterday. We both had them done individually when we first got together over 10 years ago but we updated them yesterday. My wife has had it on her agenda for the past 6 months and finally just made the appointment. It was pretty painless and a LOT less expensive than what I was anticipating.

When we had ours done originally my daughter was young but now she is old enough to the given the responsibility of Power of Attorney, etc. As to if those particular documents are required, I don't know, but it sure seems like if you specify who you want to make those decisions you at least give some direction and don't leave it to fate to determine.

Good luck!

 

[MasterBlaster]

For a will, are naming a Power of Attorney and naming a Health Care Agent a requirement? Or are they very important but not required documents that make the "meet my maker" process go a lot smoother?

They are all separate documents. None are "required". But all are highly recommended. You can have any or all of those documents.

The will - is your documented instructions on how your estate will be distributed upon your demise

The Durable Power of Attorney - appoints someone to look after your (financial) interests should you become incapacitated (or even if you are not incapacitated depending on the provisions of the document).

The Health Care Agent (or Health Care Proxy) - Appoints someone to make medical decisions for you should you become incapacitated.

 

[braumeister]

They are all separate documents. None are "required". But all are highly recommended.

The will - is your documented instructions on how your estate will be distributed upon your demise

The Durable Power of Attorney - appoints someone to look after your (financial) interests should you become incapacitated (or even if you are not incapacitated depending on the provisions of the document).

The Health Care Agent (or Health Care Proxy) - Appoints someone to make medical decisions for you should you become incapacitated.

Don't forget the "Advance Directive" (sometimes called "Living Will") which can go on file at your local hospital and doctor's office. It spells out your wishes if your agent is not available.

 

[2017ish]

IMO, the durable power of attorney and Healthcare proxy (or healthcare power of atty) are more important that a will--at least for most people who don't have minor children. For example, apart from [possibly] taking advantage of the estate tax exclusion's portability option, there is no real need for DW and I to have wills. Our stuff goes to each other, then to our kids equally (and most of it is governed by brokerage/IRA documents, rather than the wills). (We do have Wills--but now that the kids are all college grads, not as important as when they were minors.)

OTOH, if we were to both be hit by a truck, in the absence of the powers of Atty, it would be unclear who was entitled to act on our behalves both with respect to healthcare and finances.

 

[MasterBlaster]

there is no real need for DW and I to have wills.

Your state may be different than mine.

But if you die Intestate (ie. without a will) in California and have separate property from before you were married. Then the wife gets some of that and the children get some of it. The spouse doesn't automatically get everything. If you have no children then your parents may end up with half your separate property. If you have no parents left then your siblings may get half of your separate property.

That may be what you wanted, but maybe it isn't. Maybe the parents won't help the spouse. Maybe the siblings won't help the spouse. Maybe the children won't help the spouse. I could see real problems with some families.

It would be much better to spell it all out in a will as to who should get what.

 

[2017ish]

Your state may be different than mine.

But if you die Intestate (ie. without a will) in California .....

...

It would be much better to spell it all out in a will as to who should get what.

True point. It is safer to spell it out--especially if you don't know your state's intestacy laws.

Frankly, I forgot about the separate property issue, blended families, and community property states--none of those are issues to us since married as indebted grad students and only resided in traditional common law states. Any of those, much less a combination, changes the calculus to strongly favor a will and/or trusts.

Still, I think the powers of attorney are frequently overlooked and, for most/many (?) people are as important (if not more so) than the will.

 

[rodi]

Power of Attorney is for when you are still alive. I think it becomes void upon your death.
The will is for distribution of assets.

 

[growing_older]

I have an up to date will, power of attorney and other documents. When I was hospitalized after an accident and unable to communicate no one knew where the documents were and therefor no one knew my intentions. Fortunately I survived and can fix this for the future.

It's great to update your documents, but be sure people know where to find them in case they are needed.

 

[YVRRocketSurgery]

We're bad. We currently don't have a will as we've been procrastinating for the last 5 years.

The only thing I've got around to doing so far is create a "death file" that summarizes all of my accounts, account numbers, and regular bill payments so the missus or an executor (when we get around to writing the will) knows where to look for stuff.

 

[braumeister]

When my mom was in her last days, the hospital had a copy of her advance directive (including DNR) on file, so when she was brought to the ER it went smoothly. Big relief to me, since I had been through it the hard way some time before with my dad who had nothing written down.

 

[bingybear]

periodically people should review all of the documents and others. It does not mean you have to redo them all the time. I am way over due on our AB trust... this will likely be a complete rewrite with portability of the unified exclusion.

I have very little that will be processed with our wills. The main reason has little to do with probate costs, but everything is public with probate. I saw the sharks (people who pray on selling older people things they don't really need or afford) get tens of thousands of $ off my mom shortly after my dad's death.

The answers above are correct on doing a will does not require the other documents. You should check if the others are as you would want them now. Is your POA alive? It is the person you would choose now?
To avoid probate does not require trusts or complicated legal work. Simply assign beneficiaries or set TOD designations depending upon assets. This are easy to update on you own for most of these designations.
If you set up a POA, heath care POA,etc. Make sure your designated person understands your wishes now... and update them as time changes. Otherwise they may not know what you want them to do.
Revisit you documents when life or laws change. Make changed when necessary.

 

[MasterBlaster]

Maybe you should engage some professional help to make a will...

And then, to continue this saga, the Black Sheep and the second cousin challenged your self-made will and after extensive litigation were awarded what was left of the estate. The various estate attorneys though, who represented a variety of interested parties, received the lions share of the estate in very expensive legal fees.

The widow was thrown out of the family house, now in foreclosure, and had to go live in her car.

But you saved a couple hundred dollars up front.

 

[harley]

Maybe you should engage some professional help to make a will...

Cool story, bro. What's it from?

 

[Dwhit]

Please recognize your financial accounts will be distributed to the named beneficiaries on the account upon death of the account holder, regardless of what your will says

My sister once received a very nice check when her jerk ex-husband passed away. He had forgotten to change his beneficiary on his savings accounts. She loved it, but his grown children from a previous marriage were not amused.

 

[ERD50]

Cool story, bro. What's it from?

Yeah. Who said that in this thread?

-ERD50

 

[Sunset]

We're bad. We currently don't have a will as we've been procrastinating for the last 5 years.

The only thing I've got around to doing so far is create a "death file" that summarizes all of my accounts, account numbers, and regular bill payments so the missus or an executor (when we get around to writing the will) knows where to look for stuff.

So perhaps you should at least fill out the TOD (Transfer on Death) forms for your largest bank/brokerage accounts.
If like a lot of folks here you have Vanguard accounts, next time you are in your account you can set up the beneficiaries with simple mouse clicks.

 

[pb4uski]

Please recognize your financial accounts will be distributed to the named beneficiaries on the account upon death of the account holder, regardless of what your will says

My sister once received a very nice check when her jerk ex-husband passed away. He had forgotten to change his beneficiary on his savings accounts. She loved it, but his grown children from a previous marriage were not amused.

Same with life insurance. My friend's money-grubbing ex cheated on him so he threw her out and she later married this other guy. Other guy dies unexpectedly. Other guy had forgot to update his life insurance beneficiaries so his ex got the death benefit and my friend's money-grubbing ex got nothing. Karma. Priceless.

 

[easysurfer]

Please recognize your financial accounts will be distributed to the named beneficiaries on the account upon death of the account holder, regardless of what your will says

My sister once received a very nice check when her jerk ex-husband passed away. He had forgotten to change his beneficiary on his savings accounts. She loved it, but his grown children from a previous marriage were not amused.

I tried telling my recently divorced brother to make sure to check the named beneficiaries to his accounts. He was adamant that the will took precedence so I gave up trying to convince him otherwise. Guess the good news is if his ex ends up getting a good inheritance, he won't be around to find out the news .

 

[hurricane harry]

I had a nice little will once.
The attorney that drew it up had language in the will that allowed the ex wife a portion of everything I owned from the time I was born.
No thanks.

 

[O2Bfree]

Whenever I go to a medical center for tests these days, even routine stuff, they ask if I have a POA and Healthcare Directive. It's nice to be able to answer "yes".

I wonder when they'll start asking about a DNR.

 

[CaliKid]

I have a fair amount of knowledge so am happy to share. This would be relevant in California and perhaps some other states. General free advice so take it for what it cost you.

If you have any real property (even a timeshare) you should probably consider a living trust. In California all interests in real property require trips to the probate court after death. If the value is less than $150k there are abbreviated probate court options but it's still probate court and it's still much more expensive than a trust.

Also, payable on death accounts are ok but that is only death planning. What about if you become incapacitated? You want it to be easy for your trusted person to pay your bills. A trust is superior. The problem is a lot of financial institutions do not honor, or only honor after a fight, powers of attorney. They honor trusts but not powers of attorney; I am not sure why. Unless you use their specific POA form from the financial institution.

Also, in addition to the trust, you should have a will, a POA, a health care directive (or called living will or maybe called health care POA), a HIPPA release, a certified extract of trust and a general transfer statement which indicates your intent for your assets to be in your trust. This last document is important in California as it can help transfer assets to a trust after death without a full probate.

IRAs and retirement accounts are a totally separate issue due to tax implications. Can be better to name individuals directly rather than a trust. However, if minor children then name the trust.

Above all else... MAKE SURE YOUR ASSETS (other than retirement accounts) ARE ACTUALLY TITLED IN YOUR TRUST!

 

[bingybear]

I wonder when they'll start asking about a DNR.

The DNR is the fun one for me. At 51 I went to the ER (emergency room) because I had syncope. When they finally figured out the cause, they added defib patches (containerized for defibrillator connection). A few days later they installed a pacemaker and I'm good to go.
For me, if the resulting live after resuscitation was of very low quality, I would not want them to resuscitate me. However, for something like what I had above, I would.
For me, getting the terms of resuscitation or not is critical. I would not like go to something that is simple at a young age.

 

[CaliKid]

The DNR is the fun one for me. At 51 I went to the ER (emergency room) because I had syncope. When they finally figured out the cause, they added defib patches (containerized for defibrillator connection). A few days later they installed a pacemaker and I'm good to go.
For me, if the resulting live after resuscitation was of very low quality, I would not want them to resuscitate me. However, for something like what I had above, I would.
For me, getting the terms of resuscitation or not is critical. I would not like go to something that is simple at a young age.

I am glad you mention this as I forgot. You make a good point. DNR's are generally for elderly or VERY sick people. It's literally just that... they DO NOT RESUSCITATE you. Most younger people want to be resuscitated and then can always be removed from life support if things are bad. The form, at least in California, is now called a POLST. I believe the website is polst.org and it's something you would do with your doctor.