Your Will & Other Documents

“Remembering that I'll be dead soon is the most important tool I've ever encountered to help me make the big choices in life. Because almost everything - all external expectations, all pride, all fear of embarrassment or failure - these things just fall away in the face of death, leaving only what is truly important.”

- Steve Jobs -

There are some essential documents that every adult should have. The first is an advance directive, aka a living will, which specifies what medical care you do not want: (for example, no life support machines), what medical care you do want (for example: Both traditional and experimental treatments are fine with me, whatever works), and organ donation (yes or no). Your Will (sometimes called your last will and testament) can outline what happens to your body, such as burial, cremation, or donating it to science. The will also details specifics regarding your wishes regarding your estate and assets. You must also choose your durable power of attorney for healthcare, also known as a healthcare proxy or agent, who will speak for you if you are unable to speak for yourself. "Sometimes it's the person closest to you, and sometimes it's not," Paula McMenamin, MSW, a medical social worker at The Elizabeth Hospice, says. "I've had patients tell me, 'I know my husband would follow my wishes, but I don't want to put that pressure on him, so I'm going to choose my sister.'"

Your Will

A will or living trust will address the legal issues associated with your death, so it is critical that you do not skip this step. Now, whether you should use a will or a living trust is entirely a matter of personal preference, which will most likely be determined by the complexity of your estate. A will is a legal document that details your final wishes regarding the distribution of your assets after death. In your will, you name an executor who will oversee the distribution of your estate to your beneficiaries or heirs. Even if you don't have millions to leave your heirs, a will is essential: Who do you want to look after your pets or sell or pass along your house full of furniture and personal things? All of this is possible because of the will. This important document is also where you will appoint a guardian for any minor children you may have.

The best place to get a will that's tailored to your specific situation is from an attorney who specializes in estate planning in your state. You can create your own will or use a service like LegalZoom or Rocket Lawyer. However, because the laws governing wills vary from state to state, if you draft the will yourself, it may be worth paying an attorney to review and tweak the document, which is typically less expensive than having someone draw it up from scratch. There are numerous online resources available to assist you in creating a will. You can use www.willscenter.com, for example. Be aware that it is best to notarize this document in order to make it rock-solid, and you will need 2 witnesses as well, whether or not you decide to notarize. Your bank can often offer free notary services, or you can do it online using a service like https://www.notarize.com. During the covid-19 pandemic, requirements for signing official documents such as wills in-person were lifted, but it’s still wise to check your state laws to see about the validity of an online notary if you decide to go that route.

A will does not need to be notarized as long as it is properly constructed and witnessed; the court will view it as a valid document. However, notarizing the will is required if you want to make the will “self-proving” and alleviate the probate process for loved ones after you die. Therefore, the process of notarization is advised. Every will-signing ceremony requires at least two witnesses, who will both observe and sign your will. If you're gathering your own witnesses, keep in mind that not just anyone will do. To begin, witnesses must be adults of at least 18 years of age. It is also preferable to select witnesses who:

• Are familiar with you. A witness's role includes stating in writing that the will-maker appeared to have "testamentary capacity," or the ability to make rational decisions about leaving his or her property. Someone who knows you is in a better position to assess this, especially if someone raises concerns about your mental health later down the line.

• If necessary, will be available to testify. When your will is eventually submitted to probate court, witnesses may be required to provide a written statement or testify in person that they witnessed you signing and that you appeared competent. It's best to pick someone who is unlikely to die before you.

• Does not inherit under the will. Although only some states require it, having "disinterested" witnesses — those who have nothing to gain — is always a good idea in all states. This is because witnesses may be called to testify in court about the will maker's mental state.

In most states, however, you'll want to include a "self-proving affidavit" with your will, which must be signed by your witnesses and notarized. Your witnesses swear in the affidavit that they witnessed you signing the will and that you appeared to have the mental capacity required to make a valid will. After your death, the self-proving affidavit simplifies the process of having your will admitted to probate because your witnesses will not have to submit additional statements or appear in court to testify; the affidavit will suffice.

The notary may place your witnesses under oath before they sign the self-proving affidavit; the notary should be aware of the procedure required by state law. The witnesses will then be asked to sign the self-proving affidavit by the notary. You can also request that the notary ask the witnesses to state aloud that they understand and agree to each of the points in the affidavit, such as that they are aware that this document is your will and that they are being asked to act as witnesses to your signature, and so on.

In the presence of witnesses, write your initials at the bottom of each page except the last, on which you will sign completely. Use blue ink to make it easy to distinguish between the original and photocopies. Sign as you would any other important document, and use the same spelling of your name as the will states, don’t use initials or a nickname. Write the date and city where you're signing alongside your signature. Each witness should initial each page in your presence, just as you did. They also sign the "attestation" at the end of the document, which states that they witnessed you signing the document and that you appeared to do so of your own free will, and they should put their addresses & phone numbers on it. How formal you want to be depends on how concerned you are that this will be challenged in the future. The more worried you are about a potential problem, the more ritual you will need. After everyone has signed, the notary signs and stamps the affidavit with an official notarial stamp. The event is also recorded in the notary's record book.

If you do not have a will, then the state you live in has a will for you, which are the default rules in that state for anyone who dies 'intestate'" (without a will). You can't be sure that your property will go where you want it to go after you die if you don't have a will. If you die intestate, your loved ones may incur additional costs and spend more time dealing with your estate.

“When you’ve told someone that you’ve left them a legacy the only decent thing to do is to die at once” Samuel Butler -

A Living Will aka Advance Directive

A living will is not the same as a last will and testament, despite the name. This is a document that tells doctors, medical professionals, and family members which treatments you prefer if you are dying, permanently unconscious, or otherwise unable to make decisions about emergency care. It has nothing to do with age; adults of all ages can benefit from having their preferences for medical treatment expressed. In the living will, you specify which procedures you want performed and which you do not, as well as when your preferences apply. Keep in mind that the living will only takes effect if you are unable to speak for yourself.

Hiring an estate attorney in your state is the safest option for creating a living will because they will ensure that it complies with your state's laws. If you cannot afford to hire a lawyer, you can find these documents and forms online. For example, Five Wishes offers a form for $5 that satisfies the legal requirements for advance directives in 42 states and Washington, D.C. A living will/advanced directive (often confused with a 'living trust') is intended to communicate your wishes in the event you are unable to speak for yourself at the time a medical decision is to be made on your behalf. Living wills differ from state to state, so it is critical to have the correct document for your state.

Durable Health Care Power of Attorney aka Health Care Proxy

While a living will can include a comprehensive checklist of the types of treatments you'd like considered, it's difficult for a checklist to interpret nuance. This is where a durable health care power of attorney comes in. This legal document allows you to appoint a health care proxy who is authorized to communicate with your doctors, access your health care information, and make medical decisions about your care if you are unable to do so yourself. A health care proxy is also responsible for deciding which hospital, medical facility, nursing home, or hospice center to send you to for care.

The forms used to choose a proxy differ from state to state. In general, the forms must be signed by two adult witnesses (not including your proxy) and shared with your health care providers and close family members. It should be easy to access in the case of a medical emergency. It's best to have an estate planning attorney in your state create a custom form for you to ensure it meets your state's legal requirements, but if you can't afford that, you can pay less to download one from sites like LegalZoom or Rocket Lawyer.

Every single person should have a health care power of attorney or health care proxy to appoint a person to make medical decisions if you are unable to communicate your wishes. As the Terri Schiavo case famously demonstrated many years ago, failing to put one's health care wishes in writing can leave a messy dilemma for one's family.

Lasting Financial Power of Attorney aka Attorney-in-Fact or Agent

Who would pay your rent or mortgage if you were hospitalized or otherwise unable to do so? How would you ensure that incoming checks were deposited or that your investments and property were properly managed? A durable power of attorney allows you to appoint someone, known as an attorney-in-fact or agent, to manage your financial and personal affairs if you are unable to do so. (This is distinct from a simple power of attorney, which allows someone to access and manage your financial accounts but does not continue once you become incapacitated.)

If you become incapacitated without this legal safeguard in place, your loved ones may have to go through a costly and time-consuming court process to appoint a guardian or conservator to make financial and personal decisions on your behalf. It is far faster and easier to appoint an agent ahead of time. With a durable financial power of attorney, your agent will be able to manage your money without involving the courts — and you can ensure that it's someone you've chosen yourself.

It is strongly advised to have an estate planning attorney create a customized document for your situation because some title companies and banks will not accept general powers of attorney. However, if your budget does not permit it, you can create a generic one on websites such as LegalZoom and Rocket Lawyer. It is wise in many cases to have both a durable financial powers of attorney and a living trust. Both of these documents appoint someone to act in your place to make financial and quasi-financial decisions when you are unable to handle the business yourself.

A Living Trust

A living trust, like a will, is a legal document that allows you to distribute your possessions to people and organizations after you die. A living trust "owns" the property you put into it while retaining control over it. As long as the assets have value, you can put them in a living trust. A living trust can also be used to appoint a custodian to manage gifts left to minor children or to plan for the care of your pets after your death. Assets held in living trusts, unlike wills, do not have to go through probate before being distributed to your beneficiaries. And this can help your loved ones avoid what is often a time-consuming, costly, and public process.

A "grantor" establishes a living trust by executing a legal document, known as a "Declaration of Trust," which names a "trustee." The trustee will be responsible for holding the trust's property and managing it in accordance with the grantor's rules and directions, as well as for the benefit of the trust's beneficiaries. The grantor then transfers ownership of their property to the trustee in order to fund the trust. When you create a living trust, you can name yourself as the initial trustee as the grantor. This means you can keep complete control of your property in the trust (or "trust corpus") until your death. At that point, the trust's property will be distributed to the trust's beneficiaries by a "successor trustee" you've chosen. In this regard, the trustee is analogous to the executor of a will. There are two kinds of living trusts: revocable trusts and irrevocable trusts. Here are the main distinctions between them.

Revocable Living Trusts are the most common and adaptable type of living trust. You can cancel (revoke) or change your revocable living trust at any time before your death as the grantor. You can add more assets to the trust, name new beneficiaries and remove old ones, modify the trust guidelines, and sell trust property. Your trust will become irrevocable after your death, meaning it cannot be canceled or changed. Your successor trustee must then follow the instructions in the Declaration of Trust for distributing the assets of your trust.

Irrevocable Living Trusts are trusts that you cannot cancel or change. The same as with a revocable trust, you transfer ownership of your property to this type of living trust. However, once your assets are in the trust, you won't be able to change beneficiaries, update instructions, or sell them. Generally, changes to the terms of an irrevocable trust require either an agreement signed by the trustee and all of the trust's beneficiaries or a judge's order.

Revocable trusts outnumber irrevocable trusts. Wealthy individuals may make them to avoid creditors and taxes. Irrevocable trusts, as opposed to revocable trusts, may avoid certain estate taxes because they remove your assets from your taxable estate. Because this is not true for revocable living trusts, irrevocable trusts may be more useful to those whose estates exceed the federal estate tax exemption. Living trusts are similar to wills and testaments. Both allow you to specify who you want to inherit your property after you die. Here are some advantages of a living trust over relying solely on a will:

• You are not required to go through the time-consuming and costly probate process.

• It protects your heirs' privacy because probate proceedings are open to the public, whereas trust proceedings are not.

• You can create a "joint living trust" with your spouse or partner to protect each other as well as your children or other beneficiaries.

The main disadvantage of living trusts is that they require ongoing legal work and maintenance to function properly. When you buy new property, you must do so in the name of the trust or later transfer it into the trust.

You should write a will even if you have a living trust. Most of your property that you did not place in a trust before your death will be probated. Having a will in place can thus aid in this process. Without a will, the courts will distribute non-trust property according to local intestacy laws, which may not be what you want. Creating a "pour-over will" alongside a living trust is a common estate planning strategy. This is a will in which the trustee of a living trust is named as your sole beneficiary. Then, any property that was not in the trust at the time of your death will be transferred to the trust and distributed in accordance with the Declaration of Trust.

Preparing the Documents

While an attorney could assist you in preparing these documents; there are other options. Each state has its own forms (some states combine them into one document), and you can obtain a copy by visiting sites such as the NHPCO's CaringInfo.org, selecting your state, and downloading the file. Another option is to visit AgingWithDignity.org and purchase a copy of the Five Wishes document, which explains end-of-life planning in a more conversational tone and allows you to express additional wishes. If such official documents overwhelm you, simply write out your wishes yourself, even if its on a piece of paper or a word document. What your doctors and loved ones want is some direction, so even a statement you created on your own is better than nothing. However it's still best to have these legal documents witnessed and notarized, to give full credibility and leave no room for challenge when it comes to your wishes.

For young people with few assets, a simple will could be created using an online tool like LegacyWriter or LegalZoom (which could also include your healthcare advance directive and proxy). More complex arrangements for preparing for death, such as naming guardians for young children, establishing trusts, and multi-generational planning, require the assistance of an estate-planning attorney. In any case, experts agree that anyone over the age of 18 should have a basic plan in place. Especially if you are the main breadwinner in your household, an unexpected tragedy could financially ruin your family and undo your plans for the future.

The best advance care and estate planning happens well before the need arises. Planning is best done before major life events such as marriage or cohabitation, the birth of a child, or divorce. There are plenty of other reasons to update your plan, such as changes in laws, the death or illness of someone you've named as a beneficiary or executor, or a sudden influx of money, such as your own inheritance. In the absence of that, the best time to plan is immediately after a serious medical diagnosis, particularly in cases of cognitive impairment. If dementia advances too far, the individual cannot declare a health-care power of attorney, as their own cognitive function would not allow for such a document to hold legal power. A health-care power of attorney cannot be decided upon by a family member; it must be done by the individual, who must be of sound mind when making the decision.

Even the best-laid plans will be useless unless they are communicated to family and health-care providers. A living will that's just locked in a safe deposit box won't help you, especially if no one knows it’s there. Talk about these plans with loved ones, medical professionals, and your financial advisor. That way the relevant people know exactly how to access these documents in the case of an emergency.

Involving too many family members in your estate planning process may backfire. Family squabbles over keepsakes, nostalgic items, or valuable items in the event of a family members passing are legendary. Even the closest-knit family will experience some potentially alarming conflicts when suddenly faced with divvying up a deceased person’s possessions and assets. While it's important to inform your executor that certain documents for end-of-life planning are in place and who to contact if something goes wrong, no one needs to see what's in those files until after your demise. After all, you won’t be around to witness the squabbles, and a well thought-out document may prevent many interpersonal issues in the event of your passing, so in the interest of copacetic behavior try to be as detailed as possible and update the document when your life situation changes.

Beneficiaries

It’s important to know that beneficiaries can override a will. Beneficiaries are more important than many people realize when planning for death. Even if your will has instructions on how you prefer certain assets to be used, the beneficiary is the ultimate decision maker. Beneficiaries take precedence over anything in your will because the assets go directly to those named. For example, if you haven’t updated your will after you remarried, and your first wife is still listed as the beneficiary on the will - well, she can do whatever she wants with the money or assets upon your death and has no obligation to your second wife. If you name your sister as the beneficiary, and your will instructs her to provide certain funds for your wife; however if your sister decides to go against your wishes and cut off funding, there is nothing that can be done, and not just because you are dead. If you had really wanted your wife to have some money, then you should have named her as an additional beneficiary in this scenario. You can have multiple beneficiaries, or beneficiaries for certain assets. Your will is endlessly customizable. Perhaps your spouse inherits your retirement accounts and money, and your children the house and your motorcycle, your sibling gets your personal possessions to sell or keep as they wish. Just remember how important beneficiaries are, and choose wisely.

Digital Assets

One of the most common things people forget when preparing for death is that we live in a digital age. You have to ask yourself, what do I want done with my Facebook, Twitter, and Instagram page if I die tomorrow? What about the fact that many of my bills are electronic, some are automated, and every account has a different username and password? Some services will not allow family members to make changes to a deceased persons account until a death certificate has been provided. A death certificate can get delayed for a multitude of reasons - perhaps cause of death has yet to be identified, or the person died across state or international borders. The death certificate must be issued in the locality where the death took place. Life insurance will not pay until a death certificate is received. Digital assets like a Facebook Profile can be set up as a memorial, and this is becoming an increasingly common practice. If you go into your Facebook settings, you can select a legacy contact who will take charge of your Facebook profile after you die, and manage it as a memorial site for you. Such digital estate planning can also be accomplished through a variety of online platforms; for example, Everplans helps store digital information to be accessed by a loved one at the appropriate time.