WHY A WILL, WHICH IS FULLY UP-TO-DATE, IS IMPORTANT

Actual examples of issues when a loved one dies without a will, or with an out of date will:

• A father died without a will, and the vast majority of his property, under the law, went to his children, not to his surviving spouse.  The minor children of the marriage also got their shares when they turned 18.
• A former daughter-in-law (after a bitter divorce) ends up as the trustee of a trust for one's grandchildren, and in one estate was the personal representative of the estate.
• An adult child who began receiving means tested government benefits (SSI / Medicaid) because of a disability lost those benefits because of receiving an inheritance outright instead of in a special needs trust.
• When an alternate personal representative was not named, a public administrator, not a family member, was named to handle the estate, increasing significantly the commission charged for handling the estate. 
• An out of favor person (former son-in-law), or an individual who is no longer living or is not the logical choice, is named in a will.
• The tax laws have changed since the will was signed.
• Assets owned have changed significantly, including real estate in another state.
• The needs of your children and grandchildren have changed.
• The will does not provide the necessary breadth of management options for personal representative during the handling of the estate.

COMMENTS BY CLIENTS AND PROFESSIONALS

• "John and I have updated our wills largely for the benefit of our adult children.  As our experiences have been made easier by the foresight of our parents, we hope to lessen the stress of difficult transitions for our own children when the time comes."  John & Carolyn Canup
• "We have found with our clients that proper, up-to-date, and detailed estate planning documents assist our clients and their families with the management of their assets.  These documents also help to simplify the process.  In particular, these documents help surviving family members, particularly the surviving spouse, to deal with financial issues and to make related decisions during times of grief.  They help to give families peace of mind."  Larry Hungerford, Ph.D., Woodard & Company Asset Management Group

 WHY AN UP-TO-DATE DURABLE (FINANCIAL) POWER OF ATTORNEY IS IMPORTANT  

Actual examples of family situations in which an up-to-date power of attorney is not in place:

• With no power of attorney in place, no one is legally authorized to sign for the compromised loved one and to look after the affairs of the loved one.  The family relationship alone is not sufficient.
• Without a power of attorney, a guardian is appointed, who has to post a bond, which greatly increases the cost of looking after a loved one's financial affairs.
• No alternate agent is appointed.
• The power of attorney does not provide broad enough authority to take required actions in light of ever-changing requirements by financial institutions.
• The alternate agent is deceased or not able to serve.
• The agent is no longer in favor (your deceased spouse or divorced son-in-law), or the logical one to be an alternate (a former neighbor who now lives in another state).

COMMENTS BY PROFESSIONALS  

• "All estate planning documents are important, but I feel a current financial (durable) power of attorney is especially important.  As a certified public accountant who deals with many senior clients, a properly detailed power of attorney helps to secure the best alternatives for seniors.  As seniors transition to other living arrangements, this document helps make that transition go much more smoothly and efficiently."  Barbara H. Fulp, CPA, PFS, Barbara H. Fulp & Company, PLLC
• "At Bank of America's Premier Banking & Investments, we take our clients through a comprehensive financial planning process.  Through this process we have found it to be very important for our clients to have up-to-date and properly detailed durable (financial) powers of attorney.  We must be, as a fiduciary, entirely satisfied that our clients know what powers and responsibilities they are giving to their agent by a power of attorney.  We strongly encourage our clients to use competent and experienced attorneys who regularly practice in the areas of estate planning and elder law planning." Chris Woelfel, Premier Client Manager, Bank of America Premier Banking

WHY AN UP-TO-DATE HEALTH CARE POWER OF ATTORNEY IS IMPORTANT

Actual examples of family issues when an up-to-date health care power of attorney is not in place:

• A new law went into effect on October 1, 2007, greatly improving health care powers of attorney.
• Alternate health care agents are deceased, out of favor (former daughter-in-law), or no longer the logical person.
• Your health care agent may have a different opinion than you have regarding end-of-life decisions.
• Your general doctor does not have a copy of your health care power of attorney.

COMMENTS BY INDIVIDUALS AND PROFESSIONALS

• "We, as family physicians, who have practiced in this community for many years, feel that all of our patients should have living wills and a health care power of attorney.  It is also encouraged, if feasible, for patients to have a copy of these in our charts so that we can refer to them.  If other family members have questions, we will know where to go to look, and can review these documents with them at that time.  It makes it much easier for the physicians and for the families having prepared and done this ahead of time when they are confronted with making critical choices."  Robert G. Kelly, MD, Maplewood Family Practice
• "About a month ago *(October 2007), while I was out of town, my mother was admitted to the hospital.  She was unresponsive and passed away a few days later.  Mom had recently executed a living will, a healthcare power of attorney, a durable power of attorney, and had expressed her wishes about funeral arrangements in writing (although none of us thought that we would need them so soon).  Without these documents, everything from hospital admission to funeral arrangements would have been much more difficult for our family at a time when we needed to focus on each other and our grief over her loss.  The financial and practical matters of her estate have also been streamlined because she had gathered insurance information, executed a will and named an executor."  Robin Deane

WHY AN UP-TO-DATE LIVING WILL IS IMPORTANT

Actual examples of family issues when one does not have an up-to-date living will:

• A new law went into effect on October 1, 2007, greatly improving your ability to define your own wishes.
• Your stated wishes in your living will is overriden by your health care agent without your consent.
• Your doctor does not have a copy of your living will.

COMMENTS BY INDIVIDUALS

• "It is truly a gift to those you love to spare them unnecessary worry, turmoil, and effort at a time of grief and loss."  Robin Deane
• "Over the years, my husband, John, and I have come to understand the importance of possessing certain legal documents.  When we became parents, we naturally had a will drawn up.  Later, John became the financial (durable) power of attorney *(attorney in fact)for one son when he served in Iraq, and again when he was in an accident stateside.  Using this power of attorney, John was able to keep our son's affairs in order.  We also experienced the death of one parent, and the injury and illness of another.  We can fully appreciate the value of a health care power of attorney and a living will being in place before they are needed."  John & Carolyn Canup

 

* Added for clarity

DISCLAIMER:  This information is provided as a public service.  Information contained is not intended as, and should not be taken as, legal advice.  The use of information provided in this summary should not be taken as establishing any contractual or other form of attorney-client relationship between Wells Jenkins Lucas & Jenkins, PLLC, and the reader or user of this information.