Steven Scheinin asked:
I have some good news, and I have some bad news. The good news is that the State will not get your money if you die without a Will. The bad news is that the State will decide which of your relatives will get your money.
Maryland Testate Law, that is the law dealing with disposable property upon a person’s death, is very complicated. Should you die without a Will, then a decision must be made as to who will inherit your property. To prevent bickering among your survivors, the State has predetermined the right of succession, the order of preference. First, your surviving spouse will receive everything that you own together. Those items that you might not own together, for example, automobiles, savings accounts, certificates of deposit, insurance policies without a named beneficiary, just to name a few, will be divided in the following manner: If your spouse survives you and you have minor children, then your spouse will receive one-half of the remaining estate. If your spouse survives you and there are no minor children, but children over the age of 18, then your spouse will receive $15,000 plus one-half of the remaining estate. If your spouse survives you and you have no children and your parents are both deceased then your spouse will receive all of your property.
And now it gets really complicated. If all of your children are alive at the time of your death, then they will equally divide the remaining part of your estate that did not go to your spouse. If some of your children have pre-deceased you and they had children, then the share the deceased child would have gotten is divided equally among that child’s children. Wow! And don’t forget we haven’t even discussed your brothers, your sisters, your parents, your grandparents and aunts and uncles.
It is quite obvious that if you wish to control your assets after your death, then you should consider preparing a Will to designate which of your relatives shall receive your property. Further, it is only through a Will that you can designate who will get your heirlooms, those things that have great sentimental value to you but have little or no monetary worth.
Now is the time to think about writing a Will, while you have this article on your screen. Putting it off to a later date, or until you become ill or incapacitated, could cause your family and relatives great pain and heartache. Especially when they know you wanted your property disposed of in a certain way but, because you died without a Will, your wishes are not being carried out.
Noah Glaser asked:
Simply follow these steps to make sure that your last will and testament is legally binding. You can also purchase last will and testament forms that you simply fill in. But if you want a free last will and testament, follow these steps.
At the top of the will, you’ll need to identify yourself. You want to put enough information so that there’s no question about who you are. List your full name and maiden name, your social security number, birth date, and current address. This way, there can be no question that this is your will and not someone else’s.
In the first paragraph, you need to:
State that this is your last will and testament.
State that you are revoking any other wills or codicils that were previously made. Even if you didn’t make any, make sure to include this statement. Otherwise, there may be delays in processing your will while the lawyers look for an older one.
State that you’re of sound mind and under no duress when writing your will. In the second paragraph, list your spouse and children. If your children are under 18 and you have no spouse, you will need to designate someone to take care of them. It’s a good idea to ask your designated person first!
In the third paragraph, appoint an Executor for your estate. This person will handle your estate, including paying off your debts and funeral costs and disposing of any property that you don’t otherwise bequeath. The funds will be divided among your beneficiaries. States have varying requirements for who is qualified to be an Executor. In most cases, he or she needs to be a resident of the state and age 18 or older, but it’s a good idea to check your state’s laws to make sure that your choice is legal. You can also designate a payment to be made to the Executor if you wish.
List the people you want to give to and the percentage of the money they should receive. Make sure to fully identify the person; there are a lot of Mary Smiths in the world. Make sure that the percentages add up to 100%.
Designate a person to receive any other assets remaining in the estate. This way, you insure that everything has a home.
The laws on last will and testament signatures vary depending on the state, so check on that too. Generally, you’ll have to sign in the presence of two witnesses and a notary
republic. These people can’t be related to you, and they can’t be listed in the will. They should also be at least age 18.
Carefully store the will, and give a copy to your Executor to make it as easy as possible for them to do their job.
By following these steps carefully, you should have a valid last will and testament. However, these recommendations are not to be taken as legal advice, and you may want to consult a lawyer if you have special circumstances not covered in the above tips.
Susan Burgess asked:
Preparing a living will is not something most people would welcome. Some even dread this task. There is something unpleasant in thinking of that day when one is no longer capable of deciding, or doing things for one self. That is why, a guide in the form of a living will kit is very welcome. A living will kit alleviates the unpleasant feeling of facing the reality that one day one can be as helpless as a baby.
A living will, also known as an Advance Directive, is a legal document that states a person’s decisions or choices regarding extended or long term medical treatment at the time when he or she is no longer able to do so. There are two kinds of living will- the general and statutory living wills. A general living will states what you wish, without conforming to any standard. On the other hand, a statutory living will is a legal form living will that conforms to the requirements of the state law of living wills.
It is advisable to prepare a living will when one is still healthy and well. There are many online sites that provide living will information. You can download a free living will form and practice how to create a living will. Be sure to research and discuss with health professionals the instructions you intend to put in the living will.
Do not plan to wait until reaching the middle age because in a matter of seconds, it can be too late.
Living Will Kits
Forms to prepare the living will are readily available in many designated places. For convenience, a living will kit provides its buyer with the complete set of forms needed with the procedure on how to fill up or accomplish them. The kit is also available online and generally consists of the following:
1. The necessary living will forms and documents. The forms are ready to use but the user should check if they conform with the form required in the state he or she is residing in.
2. The procedure how to make a living will, from the preparation up to the signing of the living will.
3. Instructions on what to do with the accomplished living will.
Living wills vary because it is a personal document unique to its maker but there are basic requirements to make it legal, as follows:
1. Legal competence of its owner/maker to do a living will. The qualifications are stated in the kit.
2. Signatures of the maker/owner and two valid witnesses.
A living will owner who is unable to sign may ask somebody else to do so on his or her behalf. The two witnesses should be 18 years old and above and meet the requirements specified by law. The person who signed for the maker /owner could not be one of the two witnesses.
3. Date and notarization if required by the state.
4. Check if the instructions in the living will conform to the situations or cases that would be legally recognized by the state. Generally, the instructions should apply to cases where the maker/owner of the will has a terminal illness, has been unconscious for along time that it could be considered “permanent” and any medical treatment would only serve to prolong or maintain the present condition.
Copies of the completed living will document should be distributed to your family members, doctor, hospital, nursing home, confidant and anyone else whom you think would be involved in your care in case something happens. You may also submit a copy to a living will registry which, for a fee, shall professionally handle the proper distribution of the document. If possible inform your close circle of friends that you have a health care living will. A living will may include the identity of somebody assigned to make the decisions for you.
A living will maybe changed anytime. If a newly accomplished will is a replacement for a previous one, you should inform and provide the revised copies to all who have been recipients of the old living will. All copies of the old or previous will should be destroyed.
The preparation of a living will is in most cases an emotional one. Even a level-headed, very practical person who fully realizes the importance of living wills would be emotionally affected thinking about and preparing for that possibility of being almost dead, except for the act of breathing. Even a focused person would have difficulty concentrating on the task at hand and maintaining the presence of mind needed to make that very important document. This is where the value of the living will kit comes to the rescue.
Robert Olson asked:
Living Trust vs Will is an estate planning question I hear daily in my law practice. These are the two main forms used to accomplish estate planning. Most people have heard of the Will, but in our law practice the Revocable Living Trust is the document of choice. Both get the job of transferring your property done at death but do it in different ways. The main difference is whether your estate will go to court or remain private.
A Will is a formal legal document that tells the Probate Court who gets your probate eligible property. Probate eligible property is owned by a person at their death with no beneficiary designation or co-owner. Having a Will does not avoid probate.
The primary objective of the Living Trust vs Will is to avoid probate and keep you, your family and property out of court. The Living Trust is a separate entity that is created to own and manage property. The creator of the trust, the Grantor, is typically also the trustee, person in control, and the primary beneficiary, in most cases with the spouse and any minor children. The main differences lie in the before and after death administration.
You do very little before death with a Will. Generally you sign it and put it in a safe place. You may also make some beneficiary changes on life insurance and or retirement plans but that is about it. After death is where the work starts. The family will meet with an attorney who will then initiate the probate court proceeding. This court procedure will last approximately eight to fourteen months. There is also a cost associated with the probate. Attorneys can either charge a percentage of your estate usually ranging between 2% - 4% or by the hour with total costs ranging from $4,000 - $10,000 or more.
To contrast a Living Trust, before death is where the work is. After the Grantor signs the trust, he or she must fund it. All probate eligible property must be transferred and titled to the trust. Primary or contingent beneficiaries must also point to the trust. Once this funding is complete, probate will be avoided upon death because the decedent does not own any probate eligible property, it is owned by the trust which continues on. This makes the post death administration much quicker because there is no property transfer required. The successor trustee continues to manage the property for the next set of beneficiaries.
Another great feature of the Living Trust is financial assistance during your life if you become incapacitated. In this case, your successor trustee begins to manage your property for your benefit and can pay your bills. Another court procedure is avoided as no adult guardianship is needed. The Will does nothing for you during your life.
When deciding between the Living Trust vs Will, the living trust is a better choice for most but many people cannot afford the up front costs in attorney fees which range from $2,000 - $5,000. Until recently this initial attorney cost has been a barrier for many but now with the information available on the internet, more and more people are creating living trusts themselves.
Kelly Thacker asked:
Don’t put it off any longer. Writing a will is one of the most important things you can do for your family. Even if you don’t have any substantial assets, you should still prepare a will for your family. It is possible to write down your final wishes without a lawyer present, but it is advisable to seek legal help.
First, calculate your assets. You want to leave clear directions on how to get to the money that you have. Include retirement accounts, properties, checking and savings accounts, as well as any investments that you may have. Include account numbers, statements, contact numbers and addresses of each place that you have money. Don’t forget to include assets that should come from life insurance policies. Leave instructions on how to get to the life insurance. Your life insurance and retirement accounts will usually already have beneficiaries listed, but you may want to include information about these accounts so that they don’t go uncollected.
Second, decide who you want your assets to be left to. Clear direction should be given as to who shall receive each asset, or a percentage of each asset. You may choose to include instructions as to who will receive what portion if one of your heirs should pass away before you. Would the next heir receive their portion? Or would their children receive it? What about their children? Sometimes there is a long line of people waiting to divide up the assets if the person you intended the money to go to passes away before they receive it.
In your will, you should make sure that clear instructions are given if you have children. Name someone to take care of your children in the event that both parents die. Leave instructions on how you want any monies left to children under eighteen to be managed. Specify what portions can be used for college, vehicles, or insurance.
In the United States, you are required to have two witnesses when you sign your will. Both witnesses have to also witness each other signing as a witness to your signing, so they will need to be present at the same time. Generally, you don’t want the witnesses to be people that will eventually benefit from your will. Name someone that you want to carry out the wishes of your will. This person can be a benefactor of the will. In most states, you will need to have a separate notarized form to name an executor, so check with your state laws.
With all of the different laws in your state affecting your will, it is advisable to seek legal advice. Make sure that copies of your will are where the executor can access them. Keep them in separate places and make sure that your executor is informed of where you’re keeping each copy.
Steven W. Allen asked:
What do you mean I can’t find out about my husband’s accident injuries? Why can’t we move my mother to the nice nursing-home down the street? The Health Insurance Portability and Accountability Act or HIPAA caused two of my clients to live through these very situations.
A husband and wife were involved in a terrible automobile accident. The husband was seriously injured. His wife wanted to make certain that the needed medical attention was given to her husband. The wife could not get any medical information from her doctor. Even though she was the wife, the new HIPAA law and regulations prevents her from receiving medical information without specific written authorization!
In another case, an elderly widow lady became incapacitated. Her two children wanted to place her in a nursing home so that she would receive adequate care. Even though they had a living will and health-care power of attorney for their mother, they were required to go to court and be appointed her guardians so that they could place their mother in the health care facility.
What is the HIPAA Law all about?
The HIPAA Law in a Nutshell
HIPAA took effect on April 14, 2003.
This legislation applies to virtually every physician, nurse, pharmacist, dentist, and health care provider in the nation. It impacts everyone’s access to health care information.
What does this privacy act mean? The regulations stress that health care providers must limit health information to those who are intended to receive it. This means health care information cannot be released to any unauthorized person. This may mean you may not be able to receive medical records for your spouse or parent.
HIPAA Violation Penalties
The penalties for health care providers are staggering. For each disclosure violation, there is a $100 fine. If the violation is knowing, there are criminal penalties of a $50,000 fine and up to one year in prison. If information is provided or obtained under false pretenses, there is $100,000 fine and up to five years in prison. If the wrongful sale, transfer or use of the information was for commercial advantage, there is a $250,000 fine and up to 10 years in prison.
How does this affect you? To ensure an easy transition, you must have the appropriate medical release language to comply with HIPAA in three of your estate planning documents.
Documents to Update
The documents which need to be updated are:
Your Living Will and Health Care Power of Attorney Your Living Trust Your Durable Power of Attorney
What if I do nothing?
You may be forced to sign the doctor’s or hospitals forms in a stressful emergency situation. These documents may not reflect your choices and may contain confusing legal and/or medical terminology. Or you may be unable to sign anything and may repeat one of the above scenarios.
If your documents were created before 2003 and have not been amended since, have your attorney review them for HIPAA compliant language. Are you missing some or all of these documents? Make an appointment today!