Help With Wills, Powers Of Attorney And Advance Care Directives
A last will and testament (will) is a formal written legal document setting forth how you would like your property handled and distributed at death. In your will, you can also specify guardians to take care of your minor children, establish trusts for your children’s benefit. The size of your estate, your asset and the complexity of federal and state inheritance tax laws, may make it far too risky to attempt drafting a will without an attorney. Also if you make a mistake in drafting or executing a will, you bear the risk that the probate court might declare your will invalid.
A power of attorney (POA) is a legal document giving authority to your representative to handle all of your financial matters while you are still alive but are incapacitated to manage your affairs.
An Advance Care Directive, also known as a living will or health care proxy, is a legal document designating a health care representative on your behalf (also known as a health care proxy) if you are unable to make medical decisions on your own. Also an Advance Care Directive sets forth your wishes as to when certain “life sustaining” treatment will be withheld at the end stages of your life.
What Counts As Your Estate?
Your estate includes all the property that you own at the time of your death. Through your will you can give away any property you own at the time of your death. There could be certain assets that you own that may pass outside of your will, by way of a beneficiary designation, such as your retirement plans, life insurance, bank accounts and living trust assets or property subject to a contract such as an annuity. You may also own real property that will automatically pass to another individual regardless of your will if they are on the deed.
Who Needs A Will?
Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will to control the disposition of his or her assets (and debts). Even people that have living trusts should consider preparing a will because, without a will, any property not named in the living trust will pass according to state law, not necessarily in accordance with a person’s wishes.
The legal requirements for a will is; you must be “of age” and of “sound mind” to enter into a will.
What Makes A Will Valid?
For a will to be valid it must be prepared, witnessed and signed according to specific procedures set forth in state law. In New Jersey, the probate court find that a will is invalid if it was witnessed by a beneficiary under the will or otherwise improperly, thereby causing assets to pass according to the state’s intestate laws. In other words, the state would decide how the property would be distributed, possibly even to unintended heirs, and would make no special provisions for personal property such as jewelry or family heirlooms. Moreover, when a person dies without a will, the state will distribute his or her property according to a preset formula, excluding friends, unmarried partners, charities and distant relatives.
What Happens If I Die Without A Will?
In New Jersey, if you die without a will, your property will be distributed according to state “intestacy” laws. New Jersey’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse’s relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Also if you die without a will (or “intestate”) in New Jersey, and you have any property (whether real estate or personal property), then a family member must apply to the surrogate court to be appointed the as administrator of your estate. This process is far more complex than probating a valid will. This process can be a burden on family members and may cause a conflict amongst competing family members to be named administrator. Therefore it is highly advisable that you prepare a will regardless of the size of your estate.
What Will Happen To Young Children?
If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will is the only way to tell the court who you want to raise your children.
If you are divorcing or divorced, it is highly advisable that both parents name the same guardians in their respective wills. If not, the court will decide which guardians should be appointed for your children, which can be a costly and acrimonious process.
Further, a will should set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children in your will, you can even condition when and how they will receive benefits.
What Is A Personal Representative, i.e. Executor (Male) Or Executrix (Female)?
A personal representative is responsible for making sure property is distributed according to the deceased person’s wishes. A personal representative can be an attorney, an accountant or someone that you otherwise trust to handle your personal affairs. People often name their spouse, a competent relative or trusted friend as personal representative of their estate. An alternative personal representative should always be named, in the event that your original choice elects not to serve. If you fail to name a personal representative, the court will appoint one for you.
When And Why Do I Need A Power Of Attorney (POA)?
A power of attorney (POA) is generally prepared when you have your will prepared for ease and cost savings. You should have a POA before any major surgery or in the event of any illness that may render you mentally or physically incapacitated for any period of time. A POA authorizes your designated representative to act on your behalf and sign all necessary documents and speak with all financial institutions, federal and state agencies and all other third parties to handle all of your financial and personal affairs. A POA can be tailored to you wishes and can be revoked by you at any time you are capable of re-managing your affairs. A POA automatically terminates at the time of your death, where your executor will now manage your estate. As such if you die without a will (intestate) but you have a POA, your estate and financial affairs will remain in limbo until someone applies to be appointed as administrator of you estate.
Why Should I Have An Advanced Care Directive/Living Will?
Simply put an advance care directive, also known as a living will or health care proxy (HCP) authorizes your designated representative to make medical decisions on your behalf when you are unable to do so. You may recall the Terry Schiavo case where Ms. Schiavo’s husband and parents engaged in a legal battle for years as to whether Terry should be disconnected from life support (i.e. a respirator and feeding tube). Ultimately Ms. Schiavo’s husband was appointed as Terry’s health care representative by the court and was granted the right to remove her from all “life sustaining” treatment against her parent’s wishes. Your living will allows you to decide if and when such life sustaining treatment will be withheld or otherwise administered and maintained. This includes, under what conditions will such treatment be withheld, such as if you are declared “brain dead” or in the end stages of your life, or you are in a reversible medical condition and your death is imminent. Your HCP will carry out your dying wishes and avoids a contest over competing opinions and interests by family members.
Hire Faith A. Ullmann, Esq. To Prepare Your Estate Documents
Faith A. Ullmann, Esq. will meet with you to determine your estate needs and wishes. Faith will prepare your will, POA and Advanced Care Directive or any combination of these documents. If necessary Faith will travel to you, if you are unable to travel to Faith’s office in Newton. Call Faith A. Ullmann for an estate consultation: 973-786-3401.