Section I - Planning for Yourself and for Your Beneficiaries
(3) Your Will
(A) Why do You Need a Will?
In the event of your death, it will have already been determined what happens to your minor children, and your assets. This will give you peace of mind that your wishes will be handled exactly as you have decided with your legally binding will and your durable powers of attorney. A will will also make things easier for your heirs to have a faster and easier time gaining access to your assets.
Having a will makes the probate process much easier or unnecessary. Probate is the legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to intended beneficiaries. For more on probate, click here (from the American Bar Association).
If you die "intestate", that is, without a will, then the state oversees the dispensation of your assets, which it will typically distribute according to a set formula. Further complications may ensue if your children are minors, as the court will have to appoint a representative to look after their interests. There are other issues, so please avoid them, and get yourself a will.
Some individuals set up what is called a "Living Trust" to collect their assets, and avoid the courts and the probate process. I am not familiar with these arrangements, but you can find information here.
(B) What Should Be Contained in a Will?
(3) Where to Keep a Will
(4) Some Final Words on Wills, Powers of Attorney & Health Care Directives
(3) Your Will
(A) Why do You Need a Will?
In the event of your death, it will have already been determined what happens to your minor children, and your assets. This will give you peace of mind that your wishes will be handled exactly as you have decided with your legally binding will and your durable powers of attorney. A will will also make things easier for your heirs to have a faster and easier time gaining access to your assets.
Having a will makes the probate process much easier or unnecessary. Probate is the legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to intended beneficiaries. For more on probate, click here (from the American Bar Association).
If you die "intestate", that is, without a will, then the state oversees the dispensation of your assets, which it will typically distribute according to a set formula. Further complications may ensue if your children are minors, as the court will have to appoint a representative to look after their interests. There are other issues, so please avoid them, and get yourself a will.
Some individuals set up what is called a "Living Trust" to collect their assets, and avoid the courts and the probate process. I am not familiar with these arrangements, but you can find information here.
(B) What Should Be Contained in a Will?
- Generally, you will need to name a still-living person as the executor (personal representative) of the estate. This is usually a spouse, adult child or trusted friend. It is common too, and a good idea, to name an alternate executor in the event that the primary cannot fulfill the duties. I've read where it is probably a bad idea to have co-executors. More on executorship can be found In Section III - Executorship Following the Death of Your Last Parent.
- Information on who you are, and who your beneficiaries are, and what share of the estate that they will receive, or other asset distribution wishes.
- Direct that final expenses will be paid from the estate.
- Bequests to charities if applicable.
- Set up trusts for minor children.
- Signatures of the Testator (you), and two witnesses.
- Click here for a sample of a basic will.
- Wills are personal, and depending on your circumstances, your will will contain items that are unique to your situation. Consult with your attorney is the best advice I can give in regards to the content of your will.
- General Durable Power of Attorney
- This part of a will, or perhaps separate from, dictates the situations where a guardian needs to step in to make decisions for someone who becomes unable to (for an elderly parent, mental illness, disability, etc.).
- The individual granted the Power of Attorney (POA) becomes the Guardian and Attorney-in-Fact, and can act with full power and authority as though they were the absolute owner of the Principal's assets and liabilities, and may perform any and all acts, in the best interest and in the name of, the Principal, as fully as the Principal could perform if the Principal were personally present.
- The POA does not provide the authority for the Attorney-in-Fact to override personal and health care decisions making by the Principal, so long as they have the capacity to make such decisions in their own behalf.
- A POA is valid until the person dies, then the Will takes over, and the POA is invalid.
- The POA must be signed in front of a Notary, who must declare that you signed it voluntarily for the purposes mentioned in it.
- POA's generally do not need to be recorded unless they are needed to give the agent the power to sell land, or to transfer or encumber title to land in some other way. Although, the POA probably should be recorded because recording provides notice of the agent's authority, allows the agent to obtain certified copies, and is usually required by title companies or other entities involved in land transactions. A copy will be made for public record, and the original will be returned to the person submitting it.
- Health Care Directive
- This document gives an Attorney-In-Fact (POA), and the attending physician(s) instructions for your final terminal care. Basically, you can decide how much life saving and comfort measures are taken on your way out. It can include artificial hydration, nutrition, and resuscitation.
- Having these decisions made as part of your will can relieve this burden for your POA or other appointed representative.
- Click here for sample Health Care Directive.
- DNR - Do Not Resuscitate
- Probably not part of a will, the DNR is an important document.
- Similar to the Health Care Directive, a DNR is an order from your doctor saying that you are terminally ill and do not want to be revived if your heart or breathing stops. It does not mean that you would not receive proper medical care. You would still be kept as comfortable and free from pain as possible. Hospice, or other adult living situations may require this to receive their care.
(3) Where to Keep a Will
- At least you and your executor should know where it is stored, along with needed information such as the password for the safe. Its also smart to give duplicate and signed copies to the executor, and your attorney if you have one. The absence of an original will can complicate matters, and without it, there is no guarantee that your estate will be settled as you had planned.
(4) Some Final Words on Wills, Powers of Attorney & Health Care Directives
- We got our wills, POA's & Health Care Directives through a friend, who is also an attorney in that field. They are just basic documents. You can also get wills other ways, and there are many sites online where you can get one, although if I went this route I would go with Dave Ramsey's recommendation.
- As mentioned above, your will is specific to you, so you need to determine to what detail that your asset distributions may be, who gets which cat, etc.. Separate from their will, my parents worked up a sheet (codicil) for their heirs for priorities of who got first, second, third, fourth pick from (firearms, furniture, art, tools, fishing gear, etc.), and it was helpful to have that when the siblings were clearing out their domiciles. Or, you can just let your heirs hash it out. It may depend on how your family dynamics are. It's up to you.
- Here is a link with a lot of good legal information on a variety of topics, at least in Washington State: Washington LawHelp