by Andrea Ambroze, Bet Tzedek Legal Services
A will is a legal document, in accordance with state law, which becomes irrevocable upon death. It’s a written document where your loved one can name an executor (a person who manages assets, pays debts and distributes assets to beneficiaries) and beneficiaries (family, friends, organizations or others who receive assets) upon his or her death.
A will does not cover: life insurance, retirement plans, living trusts, joint assets, any assets that may be joint property with someone else, such as a spouse.
If someone who has died does not have a will (called intestate), state law will determine who the beneficiaries of the assets will be. If the deceased was married, the spouse will receive his/her half of community property (half of anything acquired during the marriage), and a portion of his/her separate property. The rest of the separate property would go to the children or grandchildren of the deceased. If the deceased without a will was not married, assets will go to children, grandchildren, parents, brothers, sisters, nieces, nephews, or other family members.
Making a will is recommended because the writer has more control over his or her assets and property passed down through a will is subject to a lower estate tax.
To make a will, one must have testamentary capacity, or the understanding of what property is owned, where the property will go, and whom the natural heirs (children, etc.) are. Wills can be handwritten (called “holographic”), statutory, or drafted by a lawyer. Handwritten wills must be completely and legibly written by the older adult, state what is going to be left to whom and does not have to be notarized. A statutory will is a “fill in the blank” type of form, which makes the process easier, but does not allow for leaving specific items to specific people, dividing property unequally among people, or disinheriting a spouse or child. A will drafted by an attorney can make specific requests as to what property will be left to whom, can avoid unnecessary taxes and must be witnessed by two non-beneficiaries.
Using a codicil, which is a separate document that must be prepared according to the same state laws that govern the preparation of a will, can change a will. A new will should be made when one is married or divorced, there are major changes in the family, there is a significant increase or decrease in assets, or one wants to change the executor or guardian previously indicated.
Advance Health Care Directive
An advance health care directive allows one to designate a person to make health care decisions for him/her in the case when he/she cannot make decisions for himself. It can also pre-specify the type of health care one would like to receive in case the capacity to make decisions is lost.
A health care provider, such as a doctor or nurse, must abide by the advance health care directive.
Power of Attorney for Finances
Your loved one can appoint someone to be his/her power of attorney to perform the following actions:
- Withdrawing money from bank accounts
- Signing income tax returns
- Transferring assets to a trust
- Selling assets, including a residence or other real property
An older adult can make the power of attorney document “springing”, which would indicate that the power of attorney only take effect if the author lost capacity. He could instruct that a physician determine when capacity is lost. The power of attorney should be considered seriously, as this designee would have total control over the finances of the older adult.