The most basic estate planning documents is also its most well known. Your Last Will and Testament (often referred to simply as a “will”) allows you to do several things. First, you can specify how you want your estate to be distributed upon your death. You can divide your estate among a number of people equally, give everything to one person or a charity, or whatever else you choose to do with your property. Your will also appoints someone as the executor of your estate. This is the person who will be in charge of gathering all of your assets and debts together, notifying creditors of your death, and distributing your assets according to your instructions in the will.
In addition, your will can indicate who you would appoint as your guardian if you become incapacitated. For example, Alzheimer’s may leave you mentally unable to care for yourself and your financial affairs. By appointing your preferred guardian in your will, you are telling the Court who you want to take care of you and your affairs if you are unable to do so yourself. Further, if you have children under the age of 18, your will can state who you would prefer to be the guardian of your children in the case of your death.
A Living Will is also known as a directive to physicians and is not a part of a Basic Will. It is a separate document that lets family members know what type of care you do or do not want to receive should you become unable to make rational decisions due to incapacity.
A Health Care Power of Attorney allows you to designate someone to consent to the withdrawal of life-sustaining procedures on your behalf.
A Living Will is ever more important in this day of advanced medical technology. The Living Will states that if your life is being sustained solely by artificial means, it is your desire that these means may be terminated where there is very little chance of recovery. You must make this decision while you are still competent.
Failure to have even a Basic Will can result in massive confusion and potentially losing your estate to the State. Your heirs will not have any direction and can become embroiled in arguments and disputes that can make a difficult time even worse. In certain situations, lacking a will may even result in your estate going to the State. By having a will, you insure that your estate is passed to your family and heirs while also insuring that your wishes for settling your final affairs are handled in the manner you desire.
The disadvantage of having a will only can be seen when comparing a will to a living trust. If you pass away without a will or living trust, your estate goes through the probate process before your heirs receive your estate. Having a will does not prevent your estate from having to go through the probate process. Establishing a living trust and transferring your assets into the trust during your lifetime will allow those assets to be transferred to your heirs without probate.