The Court Of Public Opinion

One: I hate my children and want them to never speak to each other again after the battle over my estate.

Two: I hate my spouse and want him or her to suffer the agony of attempting to probate my estate without a will.

Three: I think foster care is great and I want my minor children placed there while a court decides which greedy relative will get custody.

Four: My family doesn’t need the money so I want the government to take as much of my estate for taxes as possible.

Five: I have reliable information that I am never going to die.

Of course the above is written tongue in cheek. However the tragedy of the Twin Towers, the battle over freezing Ted Williams body, and now the sniper shootings in the D.C. area are bringing to more Americans a deeper realization of their own mortality and that of their loved ones. The American Bar Association estimates that 70% of Americans do not have a will. The median age of those killed in the terrorist attack on the World Trade Center was 39 and over two thirds of those killed were men. This is the age group least likely to have a will and the court battles will last for many years after the physical scars are erased.

A case in point is the story of a young lady from Atlanta, Georgia. Her parents divorced when she was a baby and her mother died several years later. Her aunt took in the child and worked two jobs so the niece could graduate from college. The young lady was ambitious and bright. After college she excelled in her job and which allowed her to buy a house and a new car. Eventually the aunt became disabled and was taken in and cared for by her niece. One foggy morning a crash on an Atlanta freeway ended the young lady’s life. Without a will her entire estate; home, car and bank account; was awarded by the court to two half-sisters that she had met only briefly at her father’s funeral. The aunt was forced to enter a nursing home. Unfortunately what is fair is not always what is legal. My wife Carolyn is currently involved in a court battle over her mother’s estate. A family member confiscated the will and has refused to provide any information in defiance of a court order. It has been over a year and the estate is still in limbo. Much of the emotional stress and most of the legal bills would have been avoided if an attorney had been in possession of a copy of her will.

Review the five reasons not to have a will and ask yourself which one applies to you. I will also be glad to add any new reasons to the list. One that is not acceptable is that it costs too much.

Nolo’s Willmaker software is available online at a cost of approximately $40.00. Pre-Paid Legal Services http://www.prepaidlegal.com/info/carolynpatterson will prepare a will for you and your spouse without extra charge with a membership and offers reduced rates on trusts and other estate legal issues. An attorney that specializes in estates can be located through your state’s Bar Association. Whatever route you chose, don’t leave your final arrangements to the whim of a judge

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WHAT DOES A WILL DO?

The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will. A will is a legal document designating the transfer of your property and assets after you die. Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as being of sound mind and body.

WHO NEEDS A WILL?

Although wills are simple to create, about half of all Americans die without one (or Intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state. Wills are not just for the rich; the amount of property you have is irrelevant. A will ensures that what assets you do have will be given to family members or other beneficiaries you designate. If you have no apparent heirs and die without a will, it’s even possible the state may claim your estate.

Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children who may be someone you do not even know.

WHAT ARE THE ELEMENTS OF A WILL?

What you generally need to make a will:

1) Your name and place of residence;

2) Names and addresses of spouse, children and other beneficiaries, such as charities or friends;

3) Alternate beneficiaries, in the event a beneficiary dies before you do;

4) Name and address of an Executor/ Executrix to manage your estate;

5) Name and address of an alternative Executor/Executrix, in the event your first choice is unable or unwilling to act;

6) Name and address of a guardian for your minor children;

7) Name and address of an alternative guardian, in the event your first choice is unable or unwilling to act;

The age you wish your minor children to have control of their inheritance;

9) Any burial requests you may have (cremation, where you want to be buried, etc.);

10) Your signature;

11) Two Witnesses’ signatures; and

12) Notarization.

Two of the most important items included in your will are naming a guardian for minor children and naming an Executor/ Executrix.

WHAT IS A GUARDIAN?

In most cases, a surviving parent assumes the role of sole guardian. However, it’s important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the person ahead of time about what you are asking. You can name a couple as co-guardians, but that may not be advisable. It’s always possible the guardians may choose to go their separate ways at some later date, and, if so, a custody battle could ensue. If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.

WHAT IS A EXECUTOR/EXECUTRIX AND WHAT DO THEY DO?

An Executor/Executrix is the person who oversees the distribution of your assets in accordance with your will. Most people choose their spouse, an adult child, a relative, or a friend to fulfill this duty.

If no Executor/Executrix is named in a will, a Probate Judge will appoint one. Probate refers to the legal procedure for the orderly distribution of property in a person’s estate. The Executor/Executrix files the will in probate court, where a Judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will. If the will is found to be invalid, assets are distributed in accordance with state laws.

Responsibilities usually undertaken by an Executor/Executrix include:

–Paying valid creditors;

–Paying taxes;

–Notifying Social Security and other agencies and companies of your death;

–Canceling credit cards, magazine subscriptions, etc.; and

–Distributing assets according to the will.

WHAT ABOUT UPDATING MY WILL?

You’ll probably need to update your will several times during the course of your life. For example, a change in marital status, the birth of a child or a move to a new state should all prompt a review of your will. You can update your will by amending it by way of a Codicil or by drawing up a new one. Generally, people choose to issue a new will that supersedes the old document. Be sure to destroy the old will after you sign a new one.

WHAT ABOUT ESTATE TAXES?

The property included in your will may be subject to taxation. In planning your will, take into account the following:

—Federal estate taxes will generally be due if the net taxable estate is worth more than $1,000,000. This amount is scheduled to gradually increase from $1,000,000 in 2002/2003 to $3,500,000 in 2009 so that it will eventually shield $3,500,000 in gift or estate transfers from tax per taxpayer. Estates in excess of the exempt amount can be taxed at a rate from 37% to 50% (the top percentage is scheduled to gradually decrease to 45% in 2009). Also, note that these estate tax changes are scheduled to be repealed in 2010. If not extended, the tax law will revert to the estate and gift tax provisions in affect in 2001. Consult a tax or financial professional to determine a plan that is right for you and your family.

—State death or inheritance taxes

—Federal income taxes

—State income taxes

You may be able to minimize your estate tax by establishing a trust or giving gifts during your lifetime. You can also cover the cost of estate taxes by purchasing a life insurance policy intended to pay taxes. Talk to your life insurance agent to find out more about how this works.

WHERE SHOULD I KEEP MY WILL?

Once your will is written, store it in a safe place that is accessible to others after your death. I suggest that you keep it in a fire proof box that you can purchase at any office supply store. I do not suggest that you keep your will in a safe deposit box because many states will seal your safe deposit box upon your death. Make sure a close friend or relative knows where to find your will.

WHAT IS A LIVING WILL?

A living will is not a part of your will. It is a separate document that lets your family members know what type of care you do or don’t want to receive should you become terminally ill or permanently unconscious. It becomes effective only when you cannot express your wishes yourself. Discuss your wishes as reflected in your living will with family members, and be sure all your doctors have a signed copy.

WHAT IS A POWER OF ATTORNEY FOR HEALTH CARE (HEALTH CARE PROXY)?

A power of attorney for health care (health care proxy) is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your medical intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your doctors have a signed copy.

WHAT IS A FINANCIAL DURABLE POWER OF ATTORNEY?

A financial durable power of attorney is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your financial intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your financial professionals (stockbrokers, accountants, financial planners) and banks have a signed copy.

PLAN AHEAD

The end of your life is something you probably don’t want to dwell on, but thinking about what will happen to your loved ones and your assets and personal possessions is important. Making sure you’ve done all you can to make their lives easier will give you peace of mind. And once your will is drafted, you won’t have to think about it again unless something significant in your life changes.

About The Author

Sheri R. Abrams is an Attorney in Fairfax, VA. Her practice is limited to the areas of Social Security Disability Law and the preparation of wills, living wills, health and financial powers of attorney. Ms. Abrams is a graduate of Boston University’s School of Management and the George Washington University School of Law. Ms. Abrams is rated AV by Martindale-Hubbell. More information can be found at http://www.sheriabrams.com

sheri@sheriabrams.com

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A power of attorney is a legal document in which one person (the principal) authorizes another (the agent) to act on his/her behalf. Financial powers of attorney allow your agent to make decisions regarding your property. Healthcare powers of attorney allow your agent to make decisions regarding your health care needs.

A power of attorney permits you to appoint someone else to manage your financial and business affairs when you cannot do it yourself anymore.

This document can be a lifesaver when crisis situations occur after an accident or illness. The agent can do whatever the document allows, such as withdraw bank funds, pay bills, cash checks, and buy and sell real estate. The power of attorney is less costly and more private than a guardianship.

Guardianship, on the other hand, is a legal relationship whereby a probate court gives a person (the guardian) the power to make personal decisions for another (the ward).

A family member or a friend can initiate the proceedings by filing a petition in the probate court in the county where the individual resides. A medical examination by a licensed physician may be necessary to establish the individuals condition. A court of law will then determine whether the person is unable to meet the essential requirements for his/her health and safety.

A conservatorship is a legal relationship whereby the probate court gives a person (the conservator) the power to make financial decisions for another (the protectee). The court proceedings are very similar to those of a guardianship except the court determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a conservator to make monetary decisions for the individual. Often the court appoints the same person to act as both guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court yearly.

With all this in mind, you should evaluate your situation. What would you do if you could no longer handle your own affairs? You may want to consult with an attorney specializing in Elder Law, who will be able to assist you and advise you in this matter. By doing this now when you still have the time, you will save yourself and your loved ones heartache and financial expenses in the future.

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A power of attorney is a legal document that allows you to dictate who you would like to make decisions on your behalf. While there are many useful purposes for a power of attorney, they are especially important to unmarried couples, which live together, when a partner becomes incapacitated and unable to make decisions.

In such situations, the law usually designates the incapacitated person’s next of kin as the decision maker. With a power of attorney, unmarried couples can give their partners the power to make such decisions.

Powers of attorney can be as general or specific as you decide. You can give your partner the power to make decisions on your behalf at any time or only when you become incapacitated. You can also dictate what types of decisions you are authorizing your agent to make. A health care power of attorney (also referred to as a durable power of attorney for health care, medical power of attorney, health care proxy and appointment of health care agent of surrogate) would authorize your partner (or other agent) to make decisions about your medical treatment and dictate who you would like to be able to visit you while receiving medical treatment.

By executing a power of attorney for finances (also referred to as a durable power of attorney for finances) you could dictate whom you want to make decisions about your legal and financial matters. You can be very specific about what actions you are authorizing your partner (or other agent) to make, including which accounts he or she has access to and the types of decisions he or she can make.

Note that Legal Helper Corp. - http://www.legalhelpmate.com/power-of-attorney.aspx - provides an easy-to-use, quick, and economical online method for creating completed power of attorney for any occasions.

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