One of the biggest impediments to an individual writing a last will and testament and other, important estate planning documents is procrastination. People simply put it off to another day, then it never gets done. Another impediment is the general gloominess of these documents. A Will reminds us of our inevitable death, and who wants to think about that. It would be like arranging your funeral at age forty. Sure, we all know we are going to die, but we hope not tomorrow.
Many people will say to me, “I told my wife that it’s better to have a Will. It is right?”
Now, my job involves drafting Wills, as well as powers of attorney and living wills, so of course, I’m going to say yes. It’s in my best interest to say yes. But in this case, the honest answer is yes, it is better to have your estate planning documents in place before something happens to you and here’s why.
A financial power of attorney and a living will for healthcare decisions are very important documents. I often tell people that I believe these documents are more important for you to have than a Will, because these documents permit someone—your spouse, your children—to make decisions for you.
Without a power of attorney, no one, not your spouse, not your children, can make financial decisions for you. Even if you own most of your assets jointly with your spouse or jointly with your children, there are still things that they cannot do for you unless they have a power of attorney.
For instance, no one would be able to access a bank account in your name alone without a power of attorney. No one would be able to access your IRA or 401(k). No one would be able to access your life insurance policies or sign any contracts for your, such as an admissions agreement to a long-term care facility if you required assistance.
Assuming you are married and most of your assets are owned jointly with your spouse, your spouse still could not sell the house or mortgage the house without your consent.
As for healthcare decisions, while a family member might be able to make medical decisions for you without your consent, nothing requires a medical professional to listen to a family member, and if the medical professional refuses to listen to the family member, there is no law that permits a family member to make medical decisions for you. Furthermore, if your family members disagree as to your care, no medical professional is going to choose sides.
Nowadays, your medical information is protected. Healthcare professionals are forbidden from sharing your medical information with anyone else, even family members, unless you appointed the person as your healthcare representative. You can make this appointment in a living will. Without the appointment, family members may not be able to access your medical information.
As for dying without a Will, there are numerous unintended consequences that could occur. If you die without a Will, your property may pass to unintended individuals. The law determines who receives your estate, and who that is may differ from who you wanted.
If you do not have a Will, you did not choose the person you wanted to handle your estate. A court might appoint someone to handle your estate who is not the person you would have chosen. If your estate passes to minors, then someone will have to appointed as the minor’s guardian. Having a Will can avoid all these problems.