Where There's A Will
Having a will is one thing. Having a living will is another. And properly storing these documents can be as important as having them
By Bart Basi and Marcus Renwick -- Industrial Distribution, 6/1/2006
ASK yourself these two simple questions:
- If you were to fall asleep and never wake up, would your family be able to locate critical documents, such as life insurance policies or your will?
- When (not if) you need someone to make life-saving decisions for you at a moment's notice, will anybody be authorized to make those decisions and be able to find the necessary documents to do so?
If you answered "no" to either of the above, you and your family will face unfair consequences when a medical emergency or death occurs. In a medical emergency, somebody overcome with emotion or stress may be making medical decisions for you.
If you become mentally incapacitated for any reason, people lacking money and business savvy could be making decisions on your behalf. If you were to pass away without saying another word, your estate would be processed according to intestate succession rules and, even worse, perhaps contrary to your wishes.
Not only are legal and medical documents important, but the ability to locate them within a certain time frame is critical. Many states require that a will be located within six months of a decedent's death or the estate will be probated as if no will ever existed.
If you have a healthcare power of attorney locked in a safe that nobody knows the combination to—or in a safe deposit box that nobody can find—that document is equally as useless.
If you have a living will (which is different from a last will and testament) that nobody knows of, what good does that document do you? Not only must you have these documents prepared, but these documents must be readily accessible.
There are four documents that are essential for creating a successful estate plan: a Last Will and Testament; a Living Will; a Health Care Power of Attorney; and a Property Power of Attorney. Each operates independently of the other, yet they are interrelated.
Last will and testamentMany of you are familiar with a will. A will provides the mechanism for distribution of who will get your property instead of having state laws determine who gets your property.
In addition, when state laws determine who will get your property, it is often at a slightly higher financial expense and a much greater emotional expense.
The most important aspect of a will is to transfer everything you own to the people whom you want to receive the items. The best thing to do when writing your last will and testament is to make a list of all the items that are important to you, and identify the people you want to receive the items.
Then, be sure to include a clause to cover items that you may forget to give to someone or items you may receive after you write the will.
Finally, remember to include a clause stipulating how taxes will be paid. If you forget this clause, the government will charge each beneficiary for the taxes due, on a pro-rata share.
The living willSome people may think if you have a living will, then you have a will. Wrong. A living will states your wishes on medical treatment if you cannot make a decision for yourself, and becomes effective once death or a comatose state becomes inevitable.
Not only does it protect you if you want to deny all available medical treatment, but it also protects you if you want to make sure you receive all possible medical treatment.
In the absence of a living will, the doctors who treat you will try to determine what your best options are, with possible consent required from a family member. The living will removes this responsibility from the doctors and any surviving family members and states what you want to be done—no more, no less.
We all remember the Terri Schiavo case from last year. In her situation, had she had a living will clearly defining her wish to die given the circumstances, both her husband and family would have saved a lot of money in litigation costs and emotional agony.
It is therefore imperative that you have a living will to spare your family those costs and emotions.
Healthcare power of attorneyThe third document you need in your estate plan is a power of attorney covering your healthcare. Just like the living will, this document allows medical decisions to be made for you in the event that you cannot communicate your desires.
However, the power of attorney differs from the living will in that the power of attorney assigns another person to make decisions for you. In the living will, you made your own decision prior to the medical event. Here, your proxy will make your decisions as needed.
These documents are both important to have because the living will generally provides a one-time decision to doctors. The healthcare power of attorney vests power in another person to make ongoing decisions for you.
Property power of attorneyThe fourth and final document that is needed in an estate plan is the property power of attorney. A property power of attorney is necessary in the event you are unable to make sound financial decisions regarding your assets during your lifetime.
The property power of attorney does not become effective until it is executed by the individual you state in the written document. It is important that you plan for the unfortunate situation when you are not able to make sound financial decisions. The property power of attorney assists in a smooth transition to a conservator and can provide you with sound financial decisions that will provide you and your loved ones with a steady stream of income for the rest of your life.
Remember, you can always change the name of the individual or the terms, as long as you are of sound financial mind.
Where to store these documentsThis question is as important as the existence of the documents themselves.
Emergencies come up suddenly, and without warning. Often, the victim cannot say another word to instruct those around him or her, rendering even the best intentioned estate plan useless. This is why the location, while secure, should be accessible enough to gain access to all documents within the necessary time frame in which they are needed.
Safes are an effective and cost-efficient place to store your estate plan. A safe from a large discount store may cost anywhere from $50 to $100. They are easy to transport, and some models provide for fire-safe protection, as well.
But, if you have an emergency, somebody must be able to go to the safe, needs to know the combination of the safe, and should be trustworthy enough to properly handle this information.
Another potential down side is that the documents in the safe may not be physically present when you need them to be. If you are on business in California at 8 a.m. and your home is in Pennsylvania, you have quite a problem, especially if nobody is home and your relatives do not live close by. A document 2,000 miles away, with nobody being home to view it, does you absolutely no good in your hour of need.
Safe deposit boxSafe deposit boxes are also a means of storing your critical documents. They are a bit more expensive than a typical store-bought safe, but they also provide more protection for money. A safe deposit box will not get stolen, and they rarely get broken into.
The fire protection in a safe deposit box is unmatched. With the key that most banks issue, a safe deposit box can be opened in minutes.
On the down side, safe deposit boxes suffer from similar limitations as a safe. In order for a safe deposit box to work, somebody else will need a key. It is also possible that that person will not be able to be contacted in time to get the contents or will be far away in an emergency.
Also, keep in mind what "bankers' hours" are. In order for your emergency to "work like clock work" with a safe deposit box, you must have your emergency on a weekday between the hours of 8 a.m. and 6 p.m.—or on a Saturday morning. Emergencies rarely happen at convenient times.
There is also one more negative about a safe deposit box. They are not conspicuous at all. For example, an acquaintance of mine handed his son a safe deposit key and instructed him what to do in case of death with no other words. The son did not know what bank, what drawer, or anything, when his father passed away suddenly.
The result was that this person had the safe deposit box key and fond memories of his father—with no idea as to what the contents were (a will, papers, valuables, etc.) or where they were.
Online storageOnline storage is a recently new phenomenon. When storing a document online, subscribers have numerous advantages to critical document storage.
First, the documents stored online are stored as an electronic signal. They will not be damaged if your house catches fire. The fee for online document storage can range from $50 to $100 per year depending on your storage needs.
Documents stored online benefit from state-of-the-art security protection. You do not have to worry about losing your key, combination, or your house being broken into. Even if your house is broken into, your documents will remain secure.
Also, some online document storage solutions supply you with a card for your wallet which contains passwords and necessary information to reach the account. Since the card is stored in your wallet, it is secure and obvious enough to be found in case of need. If you are rendered unconscious, most authorities will go through your wallet for ID and will find the card.
On the other hand, if your wallet is stolen, the online document storage company can be contacted and the account can be secured again.
Additionally, the time and space issue is solved with online documents. Online documents can be accessed immediately and the documents are there in a "legal enough" form to be used in an emergency or long enough so one can be found. Nobody has to be home when your emergency happens.
Also, if you suspect someone may have an online account containing a will, you can always ask that online company for assistance. Granted, they have certain confidentiality rules, but in times of crises, the documents can be reached and downloaded.
Estate planning is an important part of life. Leaving your loved ones without a plan—or the location as to where that plan is stored—is frustrating and of no use to your family.
You absolutely need a will, a living will, a health care power of attorney and a property power of attorney. But once you have them, it is also wise to store them in a secure place that can be accessed.
| Author Information |
| Bart Basi is president of the Center for Financial, Legal & Tax Planning, Inc., in Marion, Ill. |
| Marcus Renwick is an attorney and director of research and publications for the center. Contact them at (618) 997-3436. |














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