Where there’s a will there’s a way is something we’ve all heard, but this time we’re looking at it differently and referring to a last will and testament.
We all should be thinking about executing a will if we haven’t created one yet, but it’s especially true for our seniors and us as their family caregivers. It is important for them to leave directions for their loved ones, friends and family members who meant so much during their lifetimes.
It is a good idea to let it be known in writing in your senior’s own words who and where he or she would like their possessions and assets to be handed down. Does sister get the good china and brother get the car in the garage? Who will receive the cash in the bank? Who gets the house and all its contents? Who will take over the care for their beloved pet?
Making your senior’s wishes known with regards to their personal possessions will be a great gift to everyone when the time comes and it is needed.
Having everything in writing can also prevent family squabbles about your senior’s belongings. It often happens that at the peak of grief, everyone wants a piece of the senior ‘to remember them by’. Having specific directions can avoid the arguing and hurt feelings.
Having a proper will also leaves loved ones with the knowledge they have followed the wishes of the loved one who has passed.
Unfortunately, an estimated half of all adults do not have a will in place.
Last Will and Testament
Not exactly sure what a will would cover so that you can guide your senior into executing this valuable document?
A will is written in such a way to direct exactly who gets what in terms of possessions and assets. There is an executor that is named by the person making the will. The executor is a trusted individual, it doesn’t have to be a family member, who ensures that whatever is written in the will actually happens according to the wishes of the person.
A will can also outline what intentions the senior has regarding donating money or possessions to their favorite charity.
A will can detail who and how a person might want the care of another person, such as a dependent spouse or disabled child, to be performed.
It can establish trusts for specific members of the family. It can also detail who the person does not want to give anything to after their passing.
Having a will in place will make the process go more smoothly and perhaps even more quickly when the desires of the person are clear and the taxes or other fees are defined.
Dying Without a Valid Will in Place
There are many consequences of not having made a will. These are just a few to consider.
- Naturally, not having a will in place when the time comes that it is needed can lead to family disharmony. When no one really knows who gets what, when some want more than others think they deserve, when some take without asking or when treasured objects can’t be shared, families can get into arguments that can lead to legal action and even a lifelong fracture between the family members.
- When there is no will, called an intestate estate, probate action will take longer and an outsider who did not even know your senior loved one may end up making decisions regarding their possessions.
- There may be instances when taxes and legal proceedings eat away at whatever is left. The government may be obliged to step in to protect their own interests. Probate court will take over whatever payments or expenses your senior leaves behind and then divides up the remainder of the estate. There is a specific family tree that the probate court will follow to hand out the assets whether this is what the senior wanted or not.
- If the probate court can’t find family members, the entire estate may pass into the hands of the state or local government with no family getting the assets. An intestate estate typically incurs heavy taxes.
- If there is no executor named or the one named is unable to carry out the duties required, the probate court is forced to name one, possibly somebody who never knew your senior or their wishes.
Making a Last Will and Testament
So your senior loved one has decided that the time is right to make a will and maybe you will make your own will too. Actually every person of legal age should create a will in the case of emergency.
Here are some tips for you to get going.
One key for family caregivers — it is vital for you to make your own will as a caregiver with your expressed wishes known about what you intend to happen to your senior loved one if you are no longer able to be the caregiver. You can spell out where the senior will live, who will pay for their needs and how you expect them to be taken care of to avoid future issues or neglect of the standard of care you have established.
- We are not lawyers and are not giving legal advice, so if you have questions or are uncertain about the right steps, we suggest that you seek the advice and counsel of an elder law attorney who can guide both your senior loved one and you as the caregiver. This certified professional can also help them explore all their options and counsel them on having the most effective family discussions so that everyone is aware of the plan your senior has put in place. This might avoid future conflagrations when everyone is fully informed. You can create a will that is not too complex online but be careful that you are extremely clear on what is desired before you begin.
- Your senior loved one should be of sound mind in order to execute a legal will so don’t delay. The senior should be following their own wishes and not another person who might be creating pressure or a state of duress for the senior.
- Your senior’s will should be signed and witnessed by usually two but may be more appropriate persons, depending on the laws in your state and these laws do differ from one state to another. Be aware that, in some states, if the witness also is listed in the will it can cause them to be disallowed from inheriting.
- If you want to learn more about restrictions in your state and more about wills in general, you can visit the American Bar Association website.
- Wills can be revoked, either partially or fully, and rewritten. Be sure that the correct copy is available to the probate court when needed. Be sure that the partially revoked section makes it clear that the rest should still be considered in effect and not canceling out the entire will.
- When properly executed, a will is one of the most iron clad contracts in existence. Therefore, be sure it is done correctly and fully explains the wishes of your senior loved one (or yourself). No one wants the pet or the mail carrier to get everything — and for intended loved ones to get nothing — because something wasn’t done correctly.
- Instructions for funeral services or burial specifics can be included in your senior’s will but should also be kept separately so that they can be found and followed when they are needed and not locked in the safe at the attorney’s office on a long weekend.
- Changes should be made to a will whenever there are events that warrant it, such as death of a beneficiary or executor. If the senior or you become widowed, married or divorced, the will should be updated. If a major change in your senior’s assets occurs or there may be a tax benefit to do so it would also be a good time to change the will. If your senior simply decides to change the way property is divided, disinheriting someone or to give to a charity, he can change the will at any time. A will can be changed with a revocation and a new will or by adding a codicil to an existing will.
There are many other important documents that your senior and you should be sure have created and filed appropriately including advanced directives, trusts and powers of attorney.
The sooner this is done, the more peace of mind the entire family will have and future problems can be avoided.
Ensure things go the way they’re intended by documenting them in a will!