Introduction to the FAQ
This is not going to be your usual FAQ (Frequently Asked Questions) List. All too often, I read these things on other people’s sites and I wonder who exactly has asked these questions, and if they are actually answered all that frequently. So instead of an FAQ, I’d like to provide you with a list of things that you need to know that you might not even think to ask.
ESTATE PLANNING AND PROBATE LAW
Why do I need a will?
You need a will so that when you pass away, your property will go to your family and loved ones in a manner that you would have wanted. If you die without a will, which is called dying “intestate,” your property will pass according to state law.
What property passes under a will?
Really, it’s easier to discuss what property does not pass under a will. The bulk of the money that most people will leave to their families will be in the form of a life insurance policy. Life insurance policies are what we call “non-probate property.” Life insurance passes to the beneficiary you designate on the beneficiary form, and not according to the terms of your will.
Do I really need a lawyer to make a will?
It depends. If you have very little in the way of property and very few people you want to leave it to, you can make a will entirely in your own handwriting called a “holographic will,” and as long as your signature is on it, it’s a good will. You do not even need witnesses if you do it this way.
However, most people have a little more property than they’d be comfortable leaving this way. They also might want some provisions that a lawyer should look at to make sure that the words they’re using mean what they think they do. I once advised a client on a homemade will that had such confusing survivorship language on it that if she and her husband had died in a common tragedy, their families would have received the other spouse’s possessions, which was certainly neither what they had in mind nor what their families would have wanted. She ended up hiring me to make their wills rather than advise on making their own will because she wanted the peace of mind of knowing that their wills did what they wanted them to do.
The problem is that the legal language of wills has not changed a lot in several centuries, and it’s confusing if you’ve never made a will or studied estate law. A lawyer can help with this.
Statutory Durable Power of Attorney
A statutory durable power of attorney is a document that authorizes someone else to take care of your important business, especially your financial business, in the event that you become incapacitated due to old age, disease, or accident. It can be a stopgap measure to hold off the need for a guardian for an incapacitated person who may need help remembering to pay the bills but who does not need a full guardian just yet.
The person you designate on this document should be someone you would trust with your life, because you would be handing them the ability to sell your house and spend money out of your bank account. It’s a sobering responsibility to give someone. It is far better for you to designate this person yourself, ahead of time, than for your family or a court to have to argue about who takes this responsibility for you.
Medical Power of Attorney
A medical power of attorney designates the person who will make your medical decisions for you if you are unable to make them yourself. If you were in a coma or if you were to be declared mentally incapacitated in your old age, you would need someone to make your medical decisions for you. This needs to be someone with whom you have discussed, in detail, what your opinion is about various treatments that you might need.
Directive to Physicians
The directive to physicians is the document where you can designate for yourself what kind of treatment or non-treatment you want if you are dying or in a vegetative state. The directive to physicians spares your family and the person designated in your MPoA the agonizing decision of whether or not to take you off life support. You yourself designate the level of treatment you want and what kind of heroic measures, if any, you want taken in the event that these decisions need to be made about you. This document offers peace of mind not only to you but to your family.