Do I Really Need a Living Will?

Has it been some time since you sat down with an estate planning lawyer? If you never created a living will, now is the time to find a lawyer who can help you navigate the creation and maintenance of that document. A living will is a key component of your estate planning process.

There are many different estate planning tools and documents available to you. But it is important to understand that not all of these are created equal. Some documents work well together, and others stand on their own to help you accomplish specific tasks. There are also some confusing terms and jargon that can pop up in the process of you planning your estate.

One common misconception is the difference between a will and a living will. Your last will and testament is the document that you use to pass on assets to loved ones and to name a guardian for your minor children. It is the most basic and important estate planning document and people of all ages should have one.

A living will, however, is a form of an advanced directive, which has legal and written instructions regarding the preferences for medical care if you become unable to make decisions for yourself. Advanced directives like a living will are not only for older people, because unexpected life decisions can pop up at any age. Make sure you set aside a time to consult with an experienced and knowledgeable lawyer to create both a last will and testament and a living will to accomplish your estate planning goals.

At our NJ estate planning law office, we work with individuals and families who want to protect their wishes. Contact us today for a consultation.

If I Create a Trust in New Jersey Do I Still Need a Power of Attorney, A Will and A Living Will?

Many different estate planning tools can be used to help you accomplish your goals and it is recommended that you sit down with a knowledgeable New Jersey estate planning lawyer so that you have clarity over the goals you intend to accomplish and the strategies and tools that may be aligned with them.

You might need a will to be drafted in conjunction with the trust and this is known as a pour over will. For those assets that are not transferred into the trust, the will picks up those assets at the time of death and formally transfers them into the trust for central distribution.

You will also need a document known as a power of attorney which is required for those legal matters that cannot be handled by the trust, such as those assets that will not transfer to the trust or items that cannot be transferred like rights under health insurance policies or pension benefits or rights. In addition, a living will might be recommended by your New Jersey estate planning attorney more broadly or a health care power of attorney, which is used to handle substitute medical decision-making processes during lifetime and death.

Once a living trust is established, it can be changed. You may choose to use a living trust, a will and other estate planning strategies based on your initial consultation with an attorney who will help you clarify what you intend to accomplish and help you create a plan that not only serves you today but is capable of adapting with you in the future.

Common Reasons A Will Might Not Hold Up In Court

Especially if you have taken it upon yourself to write your will, it’s important to know that you have opened your heirs up to the risk of having your will contested in court later on. Here are three of the most common mistakes that result in a contested will.

Common Reasons A Will Might Not Hold Up In Court
(Photo Credit: 8gr.org)

Disinheriting Family Members Sans Explicit Instructions

The law tends to treat the distribution of assets relatively fairly when there are questions about intention or mistakes in the handling of the will. So, if you’re stipulating that you want to leave an individual out altogether, you need to make sure those instructions are crystal clear. You want to have this written by an attorney to reduce that chances that you have given such an individual room to argue in court.

Using Biased Witnesses During Your Will Signing

In many circumstances, you need to sign your will in front of witnesses in order for it to be valid. These witnesses may later be called I court to state that they were present and to discuss whether the person signing the will (you) had the mental capacity to sign such a document without any undue influence or pressure from other parties.

Potentially Lacking Mental Capacity to Sign the Will

One of the reasons that heirs (or those excluded) will contest a will is under the ground that you did not have the mental capacity to understand what you were doing. You must understand what property you own, your overall plan for passing on property, and who you closest family members are. Furthermore, a Living Trust, which preserves privacy, may be an option for those with a stronger likelihood of a contest in their future.

To learn more about wills and estate planning documents, contact our professionals at 732-521-9455 or info@lawesq.net.

Four Actions to Take Before Your Death

The end of a person’s life can be a difficult and confusing time. However, it doesn’t have to be. A recent article discusses four actions that every person should complete as they prepare for the next life. By completing these four actions, an individual can get the most out of his or her final days.

  1. Estate Planning: Estate planning is a process. Every person should execute his or her first estate plan upon becoming an adult. Importantly, however, a person should not neglect his or her estate plan. It is good practice for individuals to update their estate plans every three to five years, as well as after an important family event such as a birth, death, or marriage.

    Cover of "The Bucket List"
    Cover of The Bucket List
  2. Making Decisions for End of Life Care: The method through which a person wishes to leave this world is a highly personal decision. Unfortunately, many people don’t realize that they can take control over how they spend their final days. This control is gained through a living will and medical power of attorney.
  3. Bury the Hatchet: It is impossible to know when the end will be. While some people may have the time and notice necessary to atone and make amends with the individuals they have hurt or from whom they have otherwise become estranged, others will pass on suddenly without any warning. It is therefore important to take care to not carry old grudges or remain estranged from former friends or family members.
  4. Bucket List: The idea of a bucket list has been gaining in popularity since the 2007 movie of the same name. A bucket list is a list of things that an individual or couple would like to do before “kicking the bucket.” If you have any such desires, consider documenting them as the first step toward making them happen.
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Zip It: Put Your Plans on a USB Drive

We cannot predict when an accident or emergency is going to take place. All too often, hospitals and caretakers are unable to follow a person’s wishes for medical treatment – even if he or she had the correct documents in place – because these documents are not immediately available. In order to avoid this fate, a recent article discusses the option of keeping critical documents on a USB drive.

English: A Sandisk-brand USB thumb drive, SanD...
A Sandisk-brand USB thumb drive, SanDisk Cruzer Micro, 4GB. (Photo credit: Wikipedia)

A USB drive is a portable storage device that can be attached to a keychain or stored in a wallet. In order to view its contents, a user can simply plug it into any computer with a USB port. If your friends or family members are aware that you carry it with you, they can review its contents should they be required to make any medical or legal decisions on your behalf.

In order to protect yourself and your wishes in the event of an emergency, your USB drive should include a HIPAA release, living will, and medical power of attorney. It is not advisable to put a password on this drive because then the documents will not be easily accessible. However, do not store sensitive information on your USB drive, such as account numbers and passwords, unless it is password protected or encrypted.

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3 Steps for Baby Boomers Without a Plan

While every mentally competent individual over the age of 18 should have an estate plan in place, it is especially important that Baby Boomers without a plan begin to put something together. A recent article offers several estate-planning strategies for baby boomers to begin planning:

Last Will And Testament
(Photo credit: Ken_Mayer)

    1. Create a Will and Trust: No matter what type of estate planning scheme a person employs, he or she should incorporate a will into that scheme. Within a will, a person can designate a guardian for his or her minor children, as well as the distribution of personal items such as heirlooms and valuable items.

    2. Designate a Power of Attorney: A power of attorney is a vital document for any estate plan, because it allows you to designate a person to handle your financial and legal affairs should you be involved in an accident.

    3. Create a Health-Care Power of Attorney and Living Will: Just as a power of attorney allows an individual to designate the person who will handle his or her financial and legal affairs in the event of an accident or emergency, a health care power of attorney allows an individual to designate the person who will make medical decisions on his or her behalf.

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Give Serious Consideration to End of Life Decisions

One major part of estate planning is determining what kind of care, if any, you would like to receive at the end of your life. Although most people would rather not think about the end of their life, a recent article explains the importance of giving serious consideration to end-of-life care.

If you have thought about what type of care, if any, you would like to receive at the end of your life, it is important to complete an advanced medical directive and a medical power of attorney. These documents will allow you to put these desires in writing so that medical staff will be aware of your wishes when you cannot otherwise communicate with them. Additionally, they allow you to select the person who you trust to make medical decisions on your behalf.

Sample Virginia Durable Do Not Resuscitate Ord...
(Photo credit: Wikipedia)

One common type of advanced directive is a do not resuscitate order (“DNR”). A DNR advises medical staff not to take life-saving measures in the event that death is imminent. If you have a DNR, it is important to keep it in an easily accessible location, and inform your family and doctors of its existence. Importantly, an advanced directive that directs medical staff not to prolong the dying process does not withhold medicine and other procedures meant to keep you comfortable during the dying process.

Conversely, you could also complete a prolonging procedure declaration. This document instructs medical staff to do everything they can to delay death, even when it is imminent.

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Back to the Basics: Estate Planning for a “Typical” Family

Contrary to popular belief, estate planning is still important for the vast majority of Americans who are not wealthy. After all, after a person has worked his or her entire life to amass all of his or her assets, he or she should seize the opportunity to direct what happens to the assets after his or her death. A recent article discusses five important estate planning maneuvers for the “typical” family (although we are pretty sure there is no such thing as a “typical” family).

Day 73: Kerns family self portrait {about me}
(Photo credit: lorenkerns)
  1. Sign an Advance Health Care Directive: This document allows you to put your wishes in a document to be followed by your doctors, concerning the end-of-life medical care you’d like to receive.
  2. Complete a Durable Power of Attorney, which will allow you to select the person who you would like to take control of your financial affairs, should you become unable to do so.
  3. Execute a Last Will and Testament: This is an important document because it directs the distribution of your assets. Through your will, you designate the guardian for your minor children.
  4. Complete and review your beneficiary designations: These are the designations on policies, such as life insurance, that pass straight to your intended heirs upon your death.
  5. Be sure to consider the impact of property held via joint ownership. Such property is inherited immediately by the joint owner upon your death.
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“Non-Tax Issues Within Estate Planning that Impact Everyone”

Estate planning is not solely about tax avoidance. A recent article discusses several other issues that render estate planning paramount, despite the value of your estate.

Medical Care
Every estate plan should include details as to how your medical needs should be addressed. A medical power of attorney designates who will make medical decisions for you, should you become unable to make these decisions for yourself. A living will designates what type of care you would like to receive. If you do not want life-saving medical treatments to be performed on you in the event of an emergency, consider a do-not-resuscitate order.

Avoiding Disputes
Poorly thought out estate plans often lead to chaos and disputes among a person’s heirs. Adult children often fight about the management and distribution of assets. Moreover, disputes become more common as a person’s family becomes more complicated. Do not assume that your children will work everything out after your death. Consider what disputes are likely and plan for them accordingly.

Care of Others
If you are caring for or anticipate caring for a relative, it is important to ensure that the person receives the appropriate care after you are gone. This person may be a child, elderly parent, grandchild or special needs family member.