When you are taking care of a parent and you know they do not have a will, it is often a sensitive topic to begin to discuss. The best thing is to encourage them to begin thinking about their wishes once they are gone, and then move to support them in doing some estate planning and to write a will. This can be done easily with the help of an elder law attorney. If you do not have a will yourself, one way to approach the situation is to suggest that you each have a will written. And, if you are the primary caregiver of a parent or other vulnerable adult, it is extremely important that you have procedures in place that will assure that your loved one is taken care of if you are no longer able to do so. A will not only plans for your heirs’ inheritance, it can also plan for one’s own care and medical choices because along with a will, a durable power of attorney and perhaps a living will and healthcare power of attorney can be prepared in conjunction with the will.
Having a will enables an individual to designate exactly how he or she wants property to be distributed and who he or she wants to administer the estate. This person is known as the executor. After a person’s death, the person’s estate is “probated,” a court proceeding in which the debts of the estate are settled and legal title to the property is passed to the heirs. Note that certain “jointly owned” property and assets such as life insurance, retirement plans and employee death benefits may not be part of the probate estate. It’s important to have in-depth discussions with your parent regarding his or her finances, so you have a clear understanding of his or her estate and wishes regarding distribution of the estate. Sometimes these discussions do finally take place but the parent still resists having a will written. That makes things difficult for the family and other individuals involved later and may lead to problems with family relationships. A written will avoids these possibilities.
In drafting a will, you or the attorney will have your parent think about and decide on the following:
- Who will inherit real property and other financial assets
- Who will inherit jewelry, art work and other personal property
- Choose an executor or executrix
- Sign the document in front of two witnesses who also sign and date the document
- Sign the document a second time, along with the witnesses, and have those signatures notarized
- Store the will in a safe place
Wills can range from the very simple, prepared by the individual himself to those which are quite complex and drafted by an attorney. When there are significant assets and property, you and your parent will likely want an attorney to prepare the will so that both family and tax objectives can be met. These documents need to be kept in an easily accessible place, such as a file cabinet and they need to be organized in a way that the information can be retrieved when necessary. Make sure a trusted family member, your intended executrix or executor or other family members know where important documents are kept.
Laws regarding wills vary by state, so be sure to understand what rules apply in your state. Your local Agency on Aging can help you with the information you require. Although most lawyers can assist you with a will, elder law attorneys are normally the most experienced specialists to handle wills and other health related documents for senior citizens and/or their grown children.