The living will addresses a person's final days. It answers the question, of when all hope is gone and death is inevitable, do you want to be hooked up to machines and kept going for an additional week or two? Most people would answer no. Quality of life would be nonexistent, perhaps painful, and to what end? It certainly won't make relatives feel better to drag out death a few more days through the use of machines. The living will spells out your wishes when the end arrives. It specifically states what may or may not be done. Usually the language in a living will requires that everything be done to make the last hours comfortable and as pain-free as possible. Feeding, hydration, comfort and pain control may be demanded whereas heroic measures (machines) that can artificially prolong life for a few days or weeks are prohibited. Consult with your doctor for what should be allowed and specifically articulated in your living will. Without a living will, a hospital committee will usually elect to keep you artificially living a bit longer; they are often duty bound to do this simply because you have failed to express your wishes through a living will.
I want to make an important point at this time. Many readers may be in their 20s or 30s and feel they are too young to worry about such things. Everyone should have this document drawn up, so there is no question. The recent tragic case of Terry Schiavo touched hearts globally, and caused gut-wrenching reactions here in the United States involving all three branches of the federal government. Her family, which at one point may have had good relations, has been torn apart by animosity. However, if her final wishes had been expressed by means of a living will, much agony might have been avoided. More than half a million dollars would have gone for her care and legacy instead of paying lawyers. The lesson is clear: Everyone should have a living will.
Last Will and Testament
Known as the "will," this instrument directs the disposition of a person's estate after the person dies. In a sense, everyone has a will whether they had one made or not. When a person does not have a will and dies, that is called dying "intestate." The states have specific laws that govern the distribution of the estate. So everyone has a will after all. It's just a matter of deciding whether you will direct the disposition of your estate to those you want or let the state do it according to how legislators believe your estate should be distributed. The choice is pretty clear. Everyone should have a will drawn up to carry out their last wishes.
A will can handle much more than just who gets what. It can also spell out how it is received. For example, a well-loved, but irresponsible adult child or relative may receive an inheritance by means of a trust in which a responsible trustee is appointed to make sure the funds are not squandered. "Testamentary trusts" may be created by the will or "inter-vivo trusts" may be created during your lifetime. Trusts are also either revocable, which means the grantor can revoke it, or irrevocable, which as the name implies, cannot be changed even by the grantor. Always consult with a competent attorney before setting up trusts.
In addition to trusts, a will can name guardians for children and specify certain properties that a person wishes to remain in the family. An executor (male) or executrix (female) is named to handle the disposition of the decedent's property according to the decedent's wishes, and a probate court supervises the whole thing. A will is actually a very complex instrument--even so-called simple wills--and should only be drafted by a competent attorney within the state of residence.
All of the above documents are regulated according to the laws of the individual states. Many states have provisions for blending these documents into one, for instance, a health care proxy may be included with a living will or a durable POA. The states regulate this, and rules differ among states. If you move to another state, you may have to have these instruments redone. Immediately check with a local attorney in that state.
There are a lot of myths circulating about probate, so let's try to clear some of them up right now. Probate is simply a court-supervised distribution of an estate according to the directives set in a decedent's will. For modest estates in New York, this goes relatively easily and usually can be done by the executor without an attorney. Larger estates and special situations will require advanced estate planning strategies.
It is beyond the scope of this article to provide a guide for advanced estate planning. The area of advanced estate planning is so complex that a specific guide may not be possible. It may wind up being just an encyclopedia of potential strategies and available estate planning tools. I believe that for a sizable and complex estate situation, professional help should be sought. There are many competent planning attorneys, tax accountants, financial planners, insurance agents and others who specialize in this field. As in working with any professional, be sure to check credentials and records before hiring.
A source I would recommend is Sandy F. Kraemer's The 60-Minute Estate Planner. It's an easy-to-read common sense guide to estate planning and is updated every few years. It will give you some ideas on what's involved in estate planning, and help you determine if you need an advanced estate plan as well as provide suggestions on choosing the right professionals to carry it out.
This article was excerpted from This Is Not Your Parent's Retirement by Patrick Astre.
Patrick is a recognized tax agent, an enrolled agent (licensed by the U.S. Treasury to represent taxpayers' interests before the IRS.), a Certified Financial Planner and Registered Financial Consultant. Patrick has been advising individuals and corporations on issues of taxation, business and financial planning since 1969. He is an author of both financial books and numerous articles as well as an author of fiction thrillers. For more information on Patrick, please visit his website.