Planning for your death isn’t fun, but it’s necessary
By A.J. Wagner
It was one of those phone calls you hate to get. An attorney called to tell me my wife had made an appointment. My mind immediately went wild with all the wrongs I had committed to drive my wife to the moment she would seek legal counsel. Problem was, I really couldn’t think of any. We had a pretty good marriage, with two terrific daughters to make it more than worthwhile. I worked some long hours as a young attorney, but no more than any struggling young business owner.
“What? Why?” I responded. “If you haven’t made a will by Tuesday, your wife has an appointment with me to make one,” I was told. Embarrassed, I went to work on preparing our wills.
I had already prepared dozens and dozens of wills for clients, but like a cobbler whose children didn’t have shoes, I was too busy to take care of my own family.
My clients had been told how important it was to have a will. I told them how state law would dictate their property distribution if they didn’t have one. I told them the importance of naming an executor and giving the court guidance on whom to name as guardian for their children. I advised them to have a trust if their children were young, like mine. Every one of them could have said to me in return, “Physician, heal thyself!”
Most of us will die with a bank account, maybe a savings account and a retirement account, a car, some personal belongings and a house. The will dictates who inherits your property, who administers the estate, whom you would like to see as guardian for the children and may include a trust provision to take care of them until they are old enough to take care of themselves.
Property can be titled to avoid passing through the will and your attorney will advise you how to do that, but the will is still essential. The prior or simultaneous death of a spouse may require your property to go through a will. A will provides a guard against unexpected acquisition of property such as an inheritance or a lawsuit award if you die in an accident.
I am often asked about a trust, which helps avoid property going through a will, but unless minor children are involved or you are financially well-off, a trust can complicate title to property rather than help. Circumstances should dictate the need for a trust, not your neighbor’s well-intentioned advice.
While you are with your attorney, your attorney will advise you of other documents essential to a good estate plan. These include a power of attorney, a health care power of attorney and a living will.
The power of attorney provides for a person to take care of your affairs should you become incapable of doing so.
A health care power of attorney appoints someone to make medical decisions for you, should you be unable to do so. This is a specialized document that goes beyond the normal power of attorney and can provide for special instructions as to whether you would want food or water withheld from you if death becomes imminent.
A living will announces to your family and your doctors how you want to be treated should death be imminent. It relieves your loved ones from the guilt that can come with the difficult decision of asking for the plug to be pulled or for a “no code” should you go into heart failure. Along with a living will, your attorney should ask you about organ donation and you should be given the opportunity to register with the state as an organ donor.
Heed the caution below and seek legal counsel. Your situation will dictate exactly what form these documents should take and everybody’s family has a twist that requires some variation on the general premise described above.
One other important note, the Dayton Bar Association operates a terrific program called Wills for Heroes. Wills For Heroes provides free wills and other estate planning documents to first responders and their spouse or domestic partner. Qualified first responders include firefighters, police officers, paramedics, corrections and probation officers from federal, state, county, city and town departments and agencies. If you are interested in this program please contact Chris Albrektson at firstname.lastname@example.org or (937) 222-7902.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.