“THERE’S A WAY WITH A WILL” (50)
At this point, if you don’t have a will, don’t talk about getting one, do it! And do it now! Not only is it stupid for you not to have a will, it is also selfish! And the same is true for all of your adult family members. But amazingly, you would be surprised at the number of people, even including attorneys, that do not have a will. Do not allow yourself to be in that group of negligent people.
The chances are good that a deceased person’s wishes will not be carried out - even if they have made clear by other means - unless they have prepared a legally-recognized will. And not only is it important for your final wishes to be carefully and legally expressed, you can also save a great deal of uncertainty, grief and expense to your surviving family members and other beneficiaries by preparing a will.
So that brings up another question: should you use a pre-printed form as your will, or should you get an attorney to draft one? In my view, many forms can get the job done acceptably well, unless complications arise. The problem is that complicated matters may arise without you even realizing it. And if that is discovered only after you have left us, then it will be too late. So my recommendation is not to be “penny wise and pound foolish,” get an attorney to prepare this important document. And that is even more evident if you want to consider establishing a trust.
When you make an appointment with an attorney, many of them will send you a form that asks you numbers of questions about your desires. If they don’t mention this questionnaire, ask for them to give you one. Then take a few weeks, ponder the questions and fill out the form.
You may want to consider some bequests to some favorite people that have helped you, been friends to you, or simply been nice to you over the years. Along those lines, very likely you will want to consider leaving virtually all of your estate to your surviving spouse, with the provision or understanding that your spouse will eventually leave the balance of your estate to your children, etc. Nevertheless, I think that it is nice to recognize your children at the time of your death with something tangible. That often can generate good feelings at an emotional time of loss.
Possible distributions to charities are other things to consider. And, of course, you will certainly want to consider who the recipient(s) will be of the balance or residue of your estate. In addition, you will want to set forth in your will who is to pay the estate taxes if the total amount is above the cut-off level. Should everyone pay a proportional share, or are the taxes to be paid by the recipient(s) of the main part of your estate? Your will should answer those questions.
But there is also a trap in all of this. Do not use your will to give directions about how you wish your funeral or memorial service, if any, to be conducted. Or how your remains are to be dealt with. By the time your will is opened and read it will most likely be much too late. Instead simply tell your spouse, children and other important people in your life what your desires are.
As most of us who have been through this situation can attest, by far the primary issue that will be considered by your survivors is what your wishes were. It is not morbid or inappropriate at a quiet and serious moment to bring up the subject of your eventual departure and discuss it with these important and caring people in your life. Even better, you can make many of the necessary arrangements yourself, and then give the descriptive documents to your trusted survivors. That considerate act on your part will make things go much more smoothly when your eventual time comes.
The other trap is that you should not use your will to set forth your desires for medical care in your last few days or months of life. If you want any and all medical efforts to be taken to keep your heart beating for any reason, or not, get a “living will,” an Advanced Health Care Directive, or similar document. Just like with your funeral, your will is not the proper vehicle to make your important views in this area known. It will probably not be read until it is much too late.
Finally, you should review your will and trust at least every year, and modify them if appropriate in order to bring them up to date. These acts will go a long way to carry out your wishes, and to avoid uncertainty, disputes and unnecessary hand-wringing by your survivors.
We all tell ourselves that death is a part of life. Nevertheless, it almost always is emotional and traumatic for those left behind. But with a little care, foresight and consideration, you can reduce many of the problems and make the entire process less painful for those you care for and love. So be considerate for them and for yourself, and do not put off this task. Prepare a will, this is too important a matter to be ignored.
James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.