| A will is a legal document, which determines the disposition of property after death. The will follows the intentions of the deceased and officially describes who receives property and in what amounts. Under the will, such property (both real and personal) becomes the “probate” estate. Webster’s defines probate as: “the process of proving before a court that the document is the last will and testament of a deceased person,” and to determine that the will is genuine.
For those with minor children, a major reason for a will is to name a guardian for minor children and/or to create a trust and appoint a trustee to handle the property for the children after the death of the testator. A testator is the person who dies and whose will is to be probated.
When a person dies with no will, according to Washington State law, that person dies “intestate,” and his or her property is then distributed upon death according to a fixed formula established by law. These “intestate” laws are firm and inflexible, and are quite specific as to how property shall be distributed among relatives. Essentially, if you don’t have a will, the state will make one for you.
Many “do-it-yourself” will kits are readily available on-line or in retail locations. However, drafting of a will can sometimes, depending on individual circumstances, be complicated and require coordination with other estate planning documents. An attorney can help by analyzing each individual’s circumstances and objectives in order to draft the documents necessary to fit these circumstances. Equally important is consulting with your tax professional on all estate documents so as to receive expert and experienced tax planning advice regarding your entire estate plan.
Another important estate planning document is the “Living Will” (also called “Health Care Directives,” “Advance Directives,” and or “Directives to Physicians”). Living Wills are prepared in advance to inform all medical personnel as to the actions that should be taken in case of a terminal illness or permanent unconsciousness. This document clearly states a persons preferences and wishes about any medical treatment if the situation where he/she becomes unable to communicate these instructions. The Health Care Directive directs that life sustaining procedures which serve only to “artificially prolong” the individual’s death not be utilized. Such “Living Wills” in Washington State must follow certain formalities to be effective.
In addition, a Durable Power of Attorney for financial and/or health care decisions provides an attorney-in-fact legal power to make health care or financial decisions for someone who cannot make these decisions, and are not dependent on terminal illness or permanent unconsciousness to become effective. For example: since Washington is a community property state, property cannot be transferred without the signature of both spouses. As a result, should one spouse become incapacitated, the other spouse would not be able to sell the family real estate without court intervention. The execution of a Durable Power of Attorney for each spouse, effective only upon the incapacity of the other spouse, would avoid this. These Powers of Attorney can be drafted to be effective immediately or upon disability or incapacity.
Anyone who owns property, whether it is land, house, money, stocks, or jewelry should consider preparing a will. A person does not require a large estate to need a will, and each spouse, if married, should have a separate will. Remember, without a will, the court will appoint an administrator to handle your affairs. Your property will be distributed based on a fixed statutory formula, and you will have no control as to how your property is divided nor which relatives have priority. |
