At last night's will signing the attorney I work for was asked "Don't you find this really depressing?" and she just smiled. "No, I am helping people get things in order so when they pass away their families aren't left with a burden," was her excellent reply.
Most people, I think, don't make wills because they don't want to think about dying and to them that's what it means - thoughts of death.
I can understand that view but I don't share it.
Just like doctors have to maintain an emotional distance to be able to do their jobs, wills and estate planning professionals [which include me now, since I work for that type of attorney] must maintain a distance.
I grew up in a home with a dad whose banking career, as head of a trust department, meant lots of interaction with families needing wills and estate planning. We talked about wills around the dinner table. Dad had a standard speech for civic organizations called The Importance of Making a Will.
I don't think of it as macabre or weird.
What Kristy [the attorney] has dealt with so often is the unfortunate aftermath when folks die leaving no will. Families that were peaceful will bicker and deep rifts can be caused when there is no will, or if there is a dispute. This has happened in my own extended family, and the rifts are still being healed, 40 years later.
Another important thing - when a will is drafted the person has to have capacity. "Capacity" simply means the person signing the will has a normally functioning brain. Capacity can be questioned if the person has dementia, for example.
Dad saw it happen countless times. Families fighting and bitter and feeling overwhelmed when someone died without a will. Families are typically very upset when someone dies, and then if the estate is not planned out and there's no will, it's gut-wrenching. Worse than a divorce.
[My remarks herein aren't meant as legal advice. I'm not a lawyer nor do I plan on being one. I'm just trying to urge you all to consult good attorneys and get valid and enforceable wills and estate planning.]
There's a misperception that only rich people need wills. Not true. Everything you have is an "estate" - from your wardrobe to your collection of figurines, to your home, if you own it. Without a will, the laws of intestate kick in, and make the entire process more difficult. When Dad died in 1996, Mom had to get a document called "letters testamentary" in order to sell his car and change the title to the house. Probate courts issue those much more easily and quickly when there is a will. Because he had planned so carefully, the process was much quicker for her.
Of course the laws vary a bit from state to state, but it's important to pay a good lawyer to do a will for you. Don't pay a lawyer who is simply a litigator, or a real estate lawyer, or someone who doesn't normally do wills. They won't be able to protect your interests because they are not current on the law.
I know you're thinking, how much does it cost?! Well, that varies a LOT. Here in Georgia, I think it generally costs $300-$1,500 but it can be much more if it's a complicated estate. I don't know what it costs in other states.
If you are a parent with a child under 18 you need a will because you need to say who will get to be the guardian of your child. If only you die, your spouse will get custody normally, but what if you are both killed, like in a car accident?
What if you are injured and you don't die immediately but live in a vegetative state.
In Georgia, for instance, if you are hurt or ill and go into a coma, you need a loved one to have legal authority to make end of life decisions for you. To make those decisions, you need a Durable Healthcare Power of Attorney, with an appointed person to deal with the doctors and transmit your wishes. If there is no power of attorney for that, the doctors are obligated to do everything to prolong your life, even if you are braindead and there is no hope of recovery.
Most states have adopted something like the Durable Healthcare Power of Attorney, and that is what needs to be in place, all signed and sealed. [WebMD has a good article on this but it's not accurate for Georgia because here Living Wills are not enforceable any more..]
Most of us don't like to think about being incapacitated or dead, but we need to remember we are leaving behind family members and/or loved ones who will have to deal with it all. Should you get a feeding tube if you are on life support? Should you get pain meds? Are your organs to be donated? These are tough questions.
(Sorry, didn't mean to get on a soapbox there but this is a subject near and dear to me.) If you don't have a will, call an attorney in your state and set up an appointment to get one, and get a healthcare directive. Don't try to do it yourself. It has to be handled correctly, and generic forms are not the way to go.
photo by Lisa Amos
