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Wills: Planning for Those You Leave Behind

 
Everyone knows they should have a will, but nearly half of Americans over 55 don’t. Writing a will puts you face to face with your inevitable demise, and that is uncomfortable for many of us. But a will might be one of the most critical and thoughtful things you can do for your friends and family.

A will can help your loved ones avoid unnecessary hassles and give you the peace of mind of knowing that your possessions will end up in the right hands. For instance, you want the heirloom grandfather clock that’s been in your family to go to your daughter, and not the money-grubbing cousin who will sell it on eBay.

A Will, also known as a Last Will and Testament, allows you some measure of control of what happens after your death. A will is your plan for:

  • Assets, money, or property
  • Guardian(s) to care for any minor children
  • Appointment of an executor to carry out your wishes
  • Caregiver(s) and funds for any companion animals

While you do not need a lawyer to complete a will, you may find the entire process overwhelming without one. A good estate attorney can help you prepare a will, and any additional estate planning documents you need. If you would like a recommendation, book a quick call and we can help you find one who’s right for you.

Remember, a will is only one part of your estate plan. You might also need a Power of Attorney and Advance Care Directives to help protect yourself and your loved ones.

What’s in a Will?

Your estate is all the money and the things you own, from your family photos to your house. Your will assigns where it goes, from family to charities and everything in between. The people or agencies you leave your estate to are your beneficiaries.

Keep your debts in mind when assigning assets to beneficiaries. For example, if you leave a home with a mortgage, can they afford the payments?

If you pass away without leaving a valid will, you are considered to have died “intestate.” Usually, this means your estate is settled based on your state’s probate laws. (Probate is the legal process of transferring the deceased’s property to their heirs.) Probate laws generally favor the current spouse.

So you have a will and you pass away, what now?

An executor carries out your wishes!

An executor is a person or persons assigned by you, the testator, in your will. They ensure your wishes are carried out the way you want. They will also oversee settling your debts after the cost of probate and funeral expenses. That’s important. You should consider these costs when planning.

Often your executor is a lawyer or an accountant—who will need payment for this service. (Which is another cost you will need to consider.) You can have more than one executor. You can also have co-executors. Remember, your executor doesn’t have to be a professional, but choose someone who will carry out your requests without bias. For more complicated estates, a professional is usually advisable. Or the use of co-executors wherein one is a professional.

Got Kids?

Another important task your will assigns is the care of any minor children. You will need to decide who will care for them if you pass. Having backups is a great idea here.

You should consult all prospective guardians before you include them in the will. Sure, an unsuspecting guardian inheriting their long-lost cousin’s child made a great movie with “Baby Boom,” but no one wants to be in that situation. And it would be unlikely to turn out as well…

Don’t Forget Mr. McFluffybottom!

If you have a cat, dog, or other pet, what happens to them when you’re gone? This is a question that often gets missed when drafting a will.

Much like planning for care of minor children, you should consider who you want to take care of your fur-babies. Discuss the possibilities and arrange for a backup caregiver, just in case. Whomever you choose will have full discretion after you are gone—including euthanasia—so choose with care. You should also allow your executor to spend money for your pet if temporary care is required.

This article has several helpful tips regarding pets and their owner’s illness or death.

Make it Legal, Make it Known

Once you make your will, you can make it legal by signing it with witnesses present. Some states will require you to notarize your will. You may also want to have witnesses sign a self-proving affidavit in the presence of a notary. This document means it’s less likely your witnesses will be called into court to validate the authenticity of your will should a dispute arise.

Your will is of no use if no one knows it exists. Keep it in a safe place and give a copy to your lawyer. Tell your loved ones you have a will and where they can get a copy when needed.

When to review and change your will

Review your will regularly. Especially after life changes. In most cases, you need not redo your entire will, just update it with an amendment or Codicil. However, make sure you keep any updates with a copy of the original and that your executor knows you have made changes.

Reasons you might want to update your will include:

  • Birth or adoption of a child
  • Marriage or divorce
  • New home
  • Sell a home
  • Grandchildren
  • Move states
  • New assets, like cars or boats
  • Death of a beneficiary or executor
  • Tax law changes
  • Significant change to financial situation
  • You need to add a digital assets section (this includes hard drives, computers, and online accounts. You can leave instructions on what to do with social media and email accounts. Article coming soon!)

You Should Have a Letter of Competency

Disputes between family members after a loved ones’ passing happen not only in soap operas. Unfortunately, family members often disagree over the distribution of assets even in the presence of a will. Take one emotionally charged situation, add a hint of questionable mental capacity, and the perfect storm of suspicion and jealousy can be born.

One document can reduce anyone’s ability to contest your wishes: A Letter of Competency. You should obtain this letter at the same time as your will, power of attorney forms, advance directives, and any other legal documents. The intent is to invalidate any claims you were not mentally capable of making medical, financial, and/or legal decisions when you drafted the documents.

What is a Letter of Competency?

A letter of competency is a generic letter from your doctor attesting to your mental capacity. It is best to get this letter from your primary care physician, preferably one you have seen over several years. Sometimes, a specialist in mental health and cognition may be a better choice.

For example, if you have experienced mild memory loss, a specialist would be a more credible witness. An attorney can recommend which would provide the most accurate statement if you are unsure.

They should print this letter on the doctor’s letterhead and include:

    Your name Your date of birth Date the doctor-patient relationship began Your doctor’s statements testifying to your ability, or inability, to make independent decisions about your healthcare, finances, and legal matters Any relevant medical diagnoses such as Alzheimer’s disease or stroke and the date of diagnosis Doctor’s contact information

Here is a sample of what this letter may look like:

 

Dr. Dereck McDreamy
Grace Hospital
Seattle, WA




09/01/2019

To Whom It May Concern:

Richie Richardson (DOB 06/06/50) has been a patient under the care of this medical practice since 2004. He has been seen on a regular basis throughout this time. Medical records indicate that at no time during his care has he lacked capacity to make independent legal, medical, and financial decisions.

Mr. Richardson suffered a stroke May 2018. However, it is the professional opinion of this medical practice that this has in no way impaired his ability to make her own legal, medical, and financial decisions.

Feel free to contact me at 867-5309 if you require further information.

Sincerely,

[Illegible chicken scratch signature]
Dereck McDreamy, MD

 

You may need to provide facts or supporting evidence. Work with an attorney to determine what it should include.

Time Well Spent

You might wonder if a letter of competency is necessary. Hopefully, it isn’t. But it’s better to be safe than sorry. Seeing your doctor to get this letter takes minimal time and might save your loved one’s legal fees and strife.


(Sources: AARP, Schomer Law Group, Rocket Lawyer and AgingCare.)

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