About Trusts and Wills
A will is perhaps the most important legal document the average American will ever sign. Yet, over 70% of American adults do not have a will. Without a will, the state, and not you, decides who is entitled to your personal items and granted custody of minor children.
Most of us do not have enough time, cannot afford an attorney, or are too busy to think about it. In addition, none of us like to consider our own mortality, which is why so many families are caught unprepared.
Without a will, the courts could ending making decisions concerning the outcome of your estate and the guardianship of any children you may have. This may be a far cry from what you would actually want done.
If a person dies in testate, (without a will), it is the state and not the person or his or her family that determines how the estate is distributed. The only way you can make sure your wishes are carried out is to leave a will.
You have the ability to decide who will be the guardian of your children. You can decide exactly what you would like done with your assets today.
Many people believe that if you die without making a will your assets and personal belongings will automatically go to your wife, partner or children. However, this is only partially true. They may actually get less than you hoped because of the laws governing intestacy.
Making a Will, therefore, is an essential step if you want to make sure that your ‘estate’ is distributed in the way you actually want after your death, and by the executor of your choice.
Some people try to save money by writing their Will themselves. Unfortunately, a badly written Will can cause more problems than having no Will at all!
What Exactly Is A Will?
A will is a legal document that makes the specific wishes known as to how an individual wants his or her assets (estate) to be distributed. It also specifies who will be in charge of distribution of assets and who may control assets for others. Even if you don’t have a will, the state you live in has rules about how assets may be divided. Besides taking a lot of time and meaning that YOUR wishes are not being followed, not having a will means that YOUR wishes will not be respected after your (inevitable) death. A large percentage of people in the Untied States do not have wills. Clearly they are not acting in their own best interest by avoiding this action.
How do you talk about wills? In part it depends on the emotional situation in your family. Obviously, if you haven’t talked to your older parents in 5 years, for example, starting the discussion about a will is not the best course of action. Similarly, if there is some mistrust of children by parents (or visa versa) the discussion may look like you are being greedy, wanting to know what you are going to get or trying to start a fight, make others mad, and so forth.
If you live in a family in which wills haven’t been discussed, it may just be the “way you work” or it may indicate some degree of distress over the topic or even some family resentments. The rationale for everyone having a will still stands, how to get there may be a tricky path to follow. I know of one case in which a parent had remarried when her daughter was in her 20s and she and her second husband had another daughter. The husband always felt that the first daughter was “not his”. The only way the first daughter could find out anything about her parents’ plans for their will and estate was to get the second daughter to ask them directly and relay her the information. While not perfect, this method of communication did get the necessary information to all family members without creating dissention between generations regarding the family will.
The key is to be sure that you start the discussion and be clear about your own motivation, you are doing your will for the benefit of the entire family.
What Exactly Is A Living Will?
A living will, or advance directives, is a legally defined (by state) document that specifies in varying degrees what types of “extraordinary” measures one would want and NOT want to maintain their life. These documents are invaluable when an individual is in a coma or is otherwise unable to communicate what he or she wants for his/her care in dramatic health situations. I think every adult should have this type of will. Otherwise, when someone, be it a parent, spouse, sibling or even an adult child, is in such a situation, decisions cannot be made in accordance with the person’s wishes, or, occasionally, in their best interests.
Talking about this sort of will with your parents is relatively easier than perhaps ten years ago, when there was public awareness of it. The things that hold people back are fearing that somehow or other raising this means they want their parents dead, or that they may be seen as interfering in others’ lives. In fact, you are a part of their lives and I assume do not want to be left “holding the bag” with a life or death decision when you have no idea what the parent wants. If you are wondering how to raise this topic, the starting point is that you want your parents’ wishes to be upheld and, secondarily, that your parents have
some responsibility to the family.
A living will are sometimes called health care proxies, or advanced directives. All states recognize them as valid documents.
Most living wills express the wishes of a person should they become terminally ill or have a serious accident and do not want extraordinary measures used to prolong their life.
The above information is for informational purposes only and is not to be confused with legal documents. Please consult an attorney for more information.