A living will, also known in some states as a health care directive or directive to physicians, is a document that allows you to state your wishes for end-of-life medical care. This is done in case you become unable to communicate your own health care decisions. A durable power of attorney, on the other hand, is another type of medical care directive. It is a document that allows you to name a person to oversee your medical care and make health care decisions for you if you ever become unable to do so. A living will, despite its name, isn’t at all like the wills that people use to leave property at their death. If you’re helping someone with their estate planning (or doing your own), don’t overlook a living will. It can give invaluable guidance to family members and healthcare professionals if a person can’t express his or her wishes. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which occasionally make it all the way to a courtroom.
How to Create a Living Will
The requirements for a living will vary by state so many people hire a lawyer to prepare their living will.
Most people can create this simple document along with the other typical estate planning documents without the high legal fees by using a quality software application that accounts for their state’s laws. If you need to write or update a will or trust, you can take care of your living will at the same time. In addition to a living will, you can create a complete set of estate planning documents including your will, power of attorney, living trust, and more.
How Living Wills Work
Many states have forms for advance directives, allowing residents to state their wishes in as much or as little detail as they’d like. For example, it’s common to direct that palliative care that is, care to decrease pain and suffering always be administered, but that certain extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances. To be valid, a living will must meet state requirements regarding notarization or witnesses. A living will can be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment. Even if it takes effect immediately, Doctors will rely on personal communication, not a document, as long as possible. Living wills are often used with a document called a durable power of attorney (DPOA) for healthcare. In some states, in fact, the two documents are combined into one. A DPOA appoints someone to carry out the wishes about end-of-life treatment that are written down in a living will or medical directive. The person named is called the agent, healthcare proxy, or attorney infact of the person who makes the DPOA.
Living Wills After Death
Any authority granted by a living will ends when the person who made the document dies, with the single exception that some living wills or powers of attorney give healthcare agents the power to make decisions about organ donation or autopsy. But because those decisions must be made very soon after death, the authority is not long-lasting. Again, this is in sharp contrast to a regular last will and testament, which has no effect when the will-maker is alive but becomes legally binding at death.
Finding and Filing the Will
The executor of the will the person they will names to take charge of the person’s affairs when the time comes is the person who should take custody of the will. But there’s a Catch-22 if you don’t know who the executor is until you find the will and read it. Generally, the people who were the closest to the deceased person look for the will and take responsibility for it once it’s found. But it shouldn’t matter who actually finds the will. If you don’t know where the will is, start your search in the places that seem like good bets to house important documents: file cabinets, desk drawers, and boxes of papers at home and work. If you don’t find anything, consider these possibilities:
• Safe deposit boxes: Many people follow the common advice to keep their wills in their safe deposit box. This keeps the document safe, but it’s usually a bad idea for other reasons, which become obvious as soon as you need access to the box and can’t get it. No one but an owner can get into a safe deposit box, and if the deceased person was the only owner, it could be a hassle for anyone else to get access. If you are an immediate family member, the bank may let you open the box, in the presence of a bank official, and look for the will. (You won’t be allowed to remove anything else.) If the bank won’t cooperate, you can go to court and ask for an order allowing you access to the box solely for the purpose of finding the will.
• The deceased person’s lawyer: If the deceased person hired a lawyer to draft the will, the lawyer may have the original signed document or a copy of it. If you think that’s the case, call the lawyer to notify him or her of the death. The lawyer will then be required to file the will with the probate court, and you can get a copy. If you know the lawyer’s name but don’t have contact information, you can probably find it online or get it from the state bar association. If you think a lawyer drafted the will but you’re not sure, go through the deceased person’s checkbook and look for payments to a lawyer or law firm.
• The local probate court: It’s not likely, but the deceased person may have deposited the will with the local probate court. You can ask the court.
• The local lawyer community: Publish a brief notice in a local legal newspaper or county bar association publication, announcing the death and asking anyone who has the will to turn it over to you.
Typical wills are labeled with a title like Last Will and Testament If a lawyer prepared it, it might be stapled to a stiff piece of colored paper or in a thick envelope with the printed label Will. You may, however, find a handwritten will, which is signed but not witnessed. (Conventional wills are signed by two adult witnesses, who watch the will-maker sign the document.) These handwritten wills are called “holographic” wills and are valid in about half the states. For your state’s rule, see “Holographic Wills.”
While you’re looking, also pay attention to:
• Codicils: A codicil is a document that changes or adds to the terms of a will. Most people who want to make significant changes to their wills just revoke the old will and make a new one, instead of adding a codicil, but you might find a codicil.
• Lists of personal property: In more than half the states, people can make lists of items and the people they want to inherit them, and just refer to these lists in their wills. This kind of list the legal term in most states is a personal property memorandum is easier to make than a will, because it doesn’t have to be signed in front of witnesses. It can be used to tangible personal property items, which means items like books, cars, or furniture, or heirlooms. It can’t be used to leave real estate or money.
Filing the Will
Whether or not a probate court proceeding is planned, the person who has possession of the original will must file it with the probate court after the will maker dies. (Make a few copies before you do; the court will keep the original.) This isn’t an optional step. By law, most states require that you deposit the original will with the probate court in the county where the person lived within 10 to 30 days after it comes into your possession. Lots of Americans more than half, by some estimates don’t leave a will. So if you can’t find one, the reason may simply be that the deceased person never made a will. It’s not a cause for worry.
Whether or not there is a will doesn’t change the need for probate. State law will determine who inherits property that would have passed under the will. And a lot of valuable property isn’t affected by the terms of a will, anyway. For example, property held in a living trust, pay-on-death bank account, or retirement account usually goes directly to the beneficiaries named to inherit it, without probate. Similarly, property owned with someone else, such as a house owned in joint tenancy, generally goes to the surviving co-owner and isn’t affected by the will. Things can be a little more complicated if you find only a copy of the will, not the signed original. Probate courts want the signed document itself, not a copy. A court may, however, be willing to hear arguments about why the copy should be accepted as if it were an original for example, a good explanation of why the original document isn’t available and evidence that the deceased person had not changed his or her mind about the terms of the will. If you can’t find any will, or you find only an old one that you’re sure was revoked, you may be able to prove that the will in effect at the time of death has been lost. If you can also prove what it said—perhaps with testimony from the lawyer who drew it up, or the surviving spouse the court may accept its terms. You’ll need help from an experienced probate lawyer.
If you have reason to believe that someone has the will but doesn’t want to produce it, you can ask the probate court to order that person to deposit the will with the court. But talk to a lawyer before you go to court or mention the idea to anyone you suspect of hiding the will. When people draw up their last will and testament, they often store the document in a lockbox or a secured filing cabinet to ensure the will is readily available upon their death. However, the will maker called the testator can also file a copy of his will prior to his passing, ensuring the will becomes a matter of public record and thus far more difficult to dispute. After the testator dies, the individual he has appointed as his executor is responsible for filing the will with the jurisdictional court to begin probate procedures and administer the testator’s final wishes.
A testator is not required by statute to file her will during her lifetime. Some testators choose to file anyway, to ensure their will is a part of the public record before they pass. In some states, the testator can file an original copy of her will with the appropriate court and receive a docket number in advance so her appointed executor merely has to notify the court of her death to begin probate. However, most states suggest filing the will with the local Office of the County Recorder, which will not initiate any legal proceedings but does make the will a part of public record. To make a will a part of public record prior to passing, the testator can file a copy of his signed will with his local Office of the County Recorder.
The testator will probably incur a nominal filing fee typically, between $10 and $50 for filing his will. After submission, the office will provide the testator with a filed copy, which he should store, somewhere secure for safekeeping. He can also provide a copy of the filed will to his executor and his family attorney for additional security. While any subsequent will the testator executes automatically voids the filed version, the testator should consider filing a new copy of his will each time he amends the on file version with a codicil and when he executes an entirely new will to prevent potential confusion during probate. When the testator passes, the appointed executor should file a copy of the will to initiate probate procedures.
While not statutorily required for any will, probate is the process during which the court will review and verify the veracity of the testator’s will, oversee administration of the estate and handle any outstanding claims against the testator or her estate. The executor should file the original copy of the will with the appropriate court immediately following the testator’s passing. In most states, the court with jurisdiction is called Probate Court; however, some states have a Surrogacy, Surrogate’s or Estate Court, all of which serve the same function as Probate Court. The correct court to file with is the court located in the same county as the decedent’s estate typically, the same county as the decedent’s primary residence. The executor will need to pay a filing fee at the time of submitting the will, which averages between $100 and $500, depending on the rules of the specific court. However, the executor should use funds from the estate’s bank account to cover these costs, as the estate is financially responsible for any attorneys’ fees, court costs and other legal expenses related to probating the estate. A will needs to be filed with a court after the death of the testator. This filing begins the probate process which ensures that the will meets legal requirements and gives out the estate according to the instructions in the will. Though not a requirement, a will may also be filed with the court before the testator’s death for safekeeping.
Most states have separate courts that handle wills known as probate courts. If your state has a probate court, you must file the will with this court in order to open the estate for probate. Some probate courts accept a will before the testator’s death, but will not initiate probate until the testator dies. In states that do not have probate courts, you can file the will with the branch of the state courts that handles wills, such as the superior or district court. Courts that accept a will filing before the testator has passed away may ask the testator to leave a list of people who are permitted to pick up the will from the court after the testator dies. If no one picks up the will, the court may open the will and initiate the probate process under its own power. When the testator passes away, a living relative or the executor must file the will with the probate court in order to begin probate. The will cannot be acted upon until probate has begun. The executor may request the court to begin probate if the will is filed with the court for safekeeping. If the will is not filed with the court, the executor or another relative must bring the original will to the court to file it and begin probate. When a will is filed with the court after the testator’s death, it has to be accompanied by several additional filings. The most common is the petition to open the probate estate, which asks the court to start the probate process. An executor may also need to file a petition for Letters Testamentary, which a power is given to the executor by the court that allows her to do the things required to probate the estate.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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