Some activities are more fun than others. However, there are certain activities everyone should do and preparing some legal documents is one of them. Once the process is completed, for me, it felt like a nagging voice was out of my head. Preparing those documents was like pulling teeth but once done I could relax. Sometimes just starting a process gives you enough momentum to keep going so let’s take a look and begin – even if it’s baby steps.
Yes, there are some legal documents seniors should have. I am not an attorney so I’m not advising you as the legality of your documents or which ones your particular situation needs. Each state has different laws. If you are the one filling out your documents, you might want to have an attorney look them over just to be sure your wishes are carried out as stated.
Will – Not Grace
A Will is a document that states how you want your estate handled after your death. Not a cheery thought but nonetheless should be done. In a Will, you state who you want to have certain items such as furniture, photographs, jewelry to name a few. If you have any children or dependents you can state who you want to have guardianship over them.
Another issue that can be handled in a Will is who you want to look after your pets. You want to make sure you talk to the person beforehand to be sure they are willing. You can also state a certain amount of gift that you want the caretaker to receive to help with the expense of an animal. This is something you should also discuss with the person you are appointing as the caretaker.
Some types of property aren’t usually covered in a Will – such as insurance policies and bank accounts. This is because they should have beneficiaries listed for, thus a Will isn’t usually needed. However, be sure to check that you do have beneficiaries on all accounts that allow them.
What will happen to your property if you die without a Will? Well, it goes through the probate process where a judge appoints an executor who decides how to dispose of your property. In other words, who gets what – even if it wasn’t your intent or wishes they are bound by the law of your state. Another reason a Will is important.
It is usually suggested that if you have a spouse that you have separate wills. This allows each person to have his/her wishes as to what happens to their separate property. This can be important if there are previous spouses and/or children from other relationships.
Depending on your state your Will may need to be witnessed and it’s best to have someone that is not part of the Will fulfill that role. This person(s) will be seen as being impartial having no interest in the matter. Some states do require two or more witnesses.
You may or may not need to update your Will. It’s a good idea to take a look at your Will every 2 – 3 years and when any major life events occur. Some of these events include:
- Birth of a child
- Death of a beneficiary
Even though you have a Will, it can be contested. This can be from someone who feels they were slighted or believes laws regarding probate weren’t held. Wills are also contested if someone believes you weren’t of sound mind or you were coerced when signing the Will.
If someone believes there is a possibility their Will may be contested, they can include a no-contest clause. This type of clause usually states something to the effect that if a beneficiary contests a Will, they will lose any inheritance stated in the Will. The best thing to do is to be clear and concise about what you want. It’s also a good idea to have an attorney look over your completed documents.
Some definitions of common terms that will be helpful when considering and drawing up a will are:
- Testator – You or the person who the will pertains to.
- Executor – The person you assign to handle your estate. They will execute your will – follow the wishes you stated in the will. It is perfectly fine to have more than one executor.
- Estate – items that belong to you. This might include large items such as property or houses but also can include things like jewelry or photographs.
- Intestate – When someone dies without a will it usually means that that your estate will be distributed based on the laws of your state.
- Probate – This is the legal process of distributing your property to the rightful heirs.
- Administrator – If there was no Will in place during the probate process a judge will appoint an administrator who will act as the executor. Usually, an administrator is not known to the family and must follow the laws of the state, hence, your wishes may not be carried out.
Revocable Living Trust – Trust No One
A revocable living trust is a written document where you appoint someone to manage your assets in case you become incapacitated or in the event of death. Having a Revocable Living Trust will list your assets and how you want them handled. It is called Living because you create it while living. It is revocable, meaning that it can be changed at any time during your lifetime, assuming you are mentally competent.
Be aware that a Revocable Living Trust needs to be funded. Funding refers to transferring ownership of the property from your name to the name of the trust.
Here is a video to have it explained a little more.
If you have a Revocable Living Trust you still need a Will. Why? Because a Revocable Living Trust only covers assets that have a title such as a home, retirement account, or car, etc. It doesn’t cover property such as furniture, jewelry, photographs. You also cannot assign a guardian for dependents in a Living Trust.
So what are some benefits of a Revocable Living Trust?
- It allows someone to make decisions for you if you become incapacitated – someone to step in if you will.
- It avoids the expense of probate after death.
- It speeds up the process of distribution of your assets after death.
- It does not become public record after death.
Advance Directive & Durable Power of Attorney for Health Care
Many people don’t want to think about not being able to make medical decisions for themselves but it can happen. Even the healthiest person can have an accident.
Having an Advance Directive and Durable Power of Attorney for Health Care are two important documents to have in place. They state and give someone the power to make healthcare decisions should you become unable to make them for yourself.
A Durable Power of Attorney for Health Care appoints a person to make your decisions in the event of mental incompetence. You’ll want to be clear how the person you appointed should proceed with your choices of healthcare.
The Advance Directive puts into writing and makes it clear what your wishes are regarding healthcare if you become unable to voice your wishes yourself. This may be because of injury, illness and psychological issues.
Not having these documents in place can leave your loved ones in a place where they have to make decisions regarding your health care when they may not know what you would want.
Financial Power of Attorney
The Financial Power of Attorney allows someone to step in and take care of your financial matters if you aren’t able. Something as simple as paying your bills or applying for assistance can be so much easier if you have this document in place.
The Financial Power of Attorney gives whoever you appoint the right to access your bank accounts and to make financial decisions for you. Due to the power the document gives the person you appoint you must choose someone you can trust to have your best interest at heart.
It is important to have this document in place before you need it as you need to be mentally competent for it to be considered legal. For someone to get a Power of Attorney after they are incapacitated is nearly impossible and a proceeding for a court procedure known as a guardianship or conservatorship will need to be conducted.
Documents, Documents, Documents – Are They Necessary?
The legal documents that seniors should have may seem overwhelming but can be so worthwhile. Once in place, you will have peace of mind knowing that your wishes have been written clearly leaving your loved ones with a clear understanding of what you want.
There are computer programs that assist you in creating your own legal documents. Depending on your life circumstances there may be other documents that would be beneficial for you and you should do some research on those or discuss them with an attorney. Again, if you prepare your documents yourself it’s wise to consult with an attorney for them to go over them and make sure they have been completed correctly and in accordance with your specific state laws.
Comment below with your experience with creating legal documents.