Writing a Living Will - Why Should You?
March 16th, 2010Of course the decision as to whether you make a Living Will or not, is entirely up to you. However, although not a very nice thought, what if you face a situation in the future that might leave you in a persistent state of unconsciousness. How would you like this condition to be treated? With no instructions, the choice would be made by your medical team. With improving medical advances adding years to lives, there is a greater risk that situations such as this could befall many in the future.
Consider what you would want to happen if a future illness or accident were to leave you in a state where:
1. You were unable to speak, move,feel or you were in constant pain, or
2. Only a respirator or feeding tube was keeping you alive, or
3. Your quality of life was zero and there was no possibility of improvement
Under these circumstances, would you want to prolong your life under life support conditions or let nature take its natural course? Where would you want to draw the line? It is an unfortunate fact that many people find themselves in just such a situation but not thought about providing answers for those questions. Having no control over their medical treatment, these people have no choice but to “live”. You can avoid this lack of control by being practical, considering the alternatives and making a choice.
If you find this choice hard to contemplate, think how doing nothing might affect your loved ones. They may very well be the ones that have to bear the trauma of your permanent incapacity, visit you in hospital and make decisions for you. There may even be large medical bills even though recovery was not possible. They may end up having to pay! If this sounds like scaremongering I apologise, but it is a sincere attempt to provoke you to think about this important matter yourself.
Having the right to choose what medical care you receive, or not receive is what a Living Will directive is all about. Deciding these things now, while you can, calmly and without pressure, and documenting them in a legal directive will provide guidance for family, friends and doctors should the situation arise. The decision to make a Living Will is yours, and yours alone.
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Frequently Asked Questions About Wills, Trusts, and Probate
March 15th, 2010What is a will?
A will is a set of instructions that explains how you want your property distributed after your death. Your will must be in writing and must be signed by you and two witnesses. The witnesses must also have seen each other witness your will. Some people cannot serve as witnesses to your will. It is important to make sure that all of your state’s legal formalities are carefully observed.
What are the benefits of a will?
A will allows you to decide who will manage your money and other property after you die, and how it will be distributed. It lets your wishes be heard regarding the care of minor and disabled children. It often prevents disputes among your relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.
Who should draft a will?
A will is an important legal document that can have a significant impact on your family. A lawyer can give you good advice on how the will should be prepared and executed. Having a lawyer draft your will gives you the assurance that your voice will be heard regarding how you want your children to be cared for and how you want your property to be distributed.
Does a will avoid probate?
No, but a having a will can reduce the cost of probate and the burden to your friends and family. Whether your property needs to go through probate is determined by how that property is titled, not whether you have a will.
What happens if I do not have a will?
If you do not have a will, and if you have probate property, your property will be distributed according to instructions made by your state’s legislature.
What is a personal representative?
If your estate needs management, a personal representative (executor) will be appointed by the court. Having a will lets you decide who that person will be. You may choose someone familiar with your property and affairs or a professional who can serve as a personal representative. If you think there may be hard feelings in your family or your estate has complications such as children from a previous marriage, you may want to name a professional. Many banks and trust companies have experienced people to handle the difficult task of being a personal representative and - since the fee paid to a personal representative is determined by the size of the estate, not by who serves as personal representative - banks and trust companies are generally paid the same fee to serve as personal representative as an individual is paid.
What is a trust?
A trust is another tool used in estate planning that can be created as part of a will or as a separate document. A trust is a legal document that appoints someone (a “trustee”) to manage your property and gives detailed instructions on how the property will be managed and distributed. A trust is one way to take care of a minor child, an elderly person or someone who needs help handling money. A trust may be established during your lifetime, and you may act as your own trustee, or it may be established by your will after your death. Trusts are generally more complicated to create than a will, and you may want to consider having an estate planning lawyer assist you
What are the advantages of a trust?
There are several advantages of advantages of a trust, some of which are:
You control, through the trust instrument, the way assets are managed and disposed of, either at death or during incapacity.
A trust (and its assets) does not part of the probate estate.
No need for a conservatorship due to incapacity.
The avoidance or reduction of estate taxes
The potential to avoid creditor claims
Can a revocable living trust substitute for a will?
A properly drafted revocable living trust can work well as a substitute for a will and sometimes may reduce the costs of handling your estate. However, even if you have a trust, most advisors would recommend you also have a will to cover the possibility that some of your assets may not be covered by the trust at the time of your death. Whether a trust is proper for your estate is a decision to be made after receiving competent legal advice.
Is a will expensive?
No, a simple will is not expensive. However, the cost of any will depends on how much work your lawyer does for you. As a will becomes more complicated, the cost rises. Ask your lawyer for an estimate of the cost. In general, the trouble and expense of not having a will far outweigh the cost of the will.
Do I need a will if I don’t have much money?
The amount of property you own does not determine whether you need a will. Your personal and financial circumstances determine when and how a will should be drafted. For example, it is important for new parents to have a will to provide for their children even if they own little personal or real property.
Is a will from another state valid?
Yes. Generally, if you made a will in another state according to the laws of that state, it is valid in your state also. This is also true if you created a trust in another state.
Can a will be changed?
You can change your will at any time as long as you are of sound mind. Major life events such as marriage, divorce, death of a family member, or a new baby are good reasons to consider changing your will. You may revoke your old will by destroying it or by writing a new will. If you only want to make minor changes, you may create a “codicil,” a document that is attached to your will. The same legal formalities are required for creating a codicil as a will, and therefore it is wise to consult an attorney about the changes you would like to make.
Should I consider having a Health Care Directive and a Financial Power of Attorney?
Yes. A will only takes effect after you die. A Health Care Directive and power of attorney are documents that may be used to manage your health care and finances while you are still living. A power of attorney may be created for any purpose, but most commonly an elderly person will nominate a close friend or family member to be their “agent” to help manage their money. Because this power can be abused, it is wise to seek the advice of a lawyer before signing a power of attorney. A Health Care Directive is a document in which a person appoints an “agent” to make medical decisions such as living arrangements and treatment options when they become incapacitated and unable to make their own decisions.
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Plan Ahead in Michigan - Estate Planning, Probate, Trusts and Wills
March 14th, 2010It’s often not until someone close to us passes away or we are ourselves facing a terminal illness, that we start seriously thinking about what will happen to our assets when we die. This can be a scary thought, especially if we are not up to date with the laws in your state. Every state has unique laws regarding estate, probate, and will.
In most states it is advisable to consult an attorney specializing in estate, probate, and wills in your area. If you or your loved one reside in Michigan, attorneys specializing in estate planning, probate, trusts and wills, can help you by offering a unique, personalized financial strategy and enabling you to get all your affairs in order. Financial planning integrates all the financial areas in your life - for now and for later.
Michigan Probate Forms
There are several purposes behind a will. In Michigan there are several probate forms for use in estate planning and helping avoid the probate process. Here are the forms with a short description:
- The Application or Petition for Probate and/or Appointment of Personal Representative (Testate/Intestate) - typically the petitioner nominates themselves to be appointed the Personal Representative of the estate (if they are over 18 years old). Certain qualified persons have priority for appointment as Personal Representative.
- Testimony of Interested Persons,
- Supplemental Testimony of Interested Persons Testate Estate - this form is only filed when the decedent left a will and some of the devisees named in the will are not heirs.
- Acceptance of Appointment
- Letters of Authority for Personal Representative
There are two possible places to file these forms - probate court or the family division of the circuit court. Once the forms to start the probate process are filed, the court issues an Order of Formal Proceedings following a hearing, if necessary.
Estate Planning in Michigan
In Wayne County Michigan (Detroit) any estate greater than $19000 goes into probate. During probate creditors are allowed to make claims against the estate. If you are one of those that care about your loved ones future financial security then you’ll realize the need for personalized financial planning and estate planning services to:
1. Preserve your assets
2. To ensure they are distributed according to your wishes
3. To enable your family to be financially secure
4. To reduce stress for your family
5. To ensure that your assets go to your family rather than in paying probate fees or taxes
Making a will, a living trust, power of attorney and an estate plan really is the best way of taking care of your family financially once you have gone.
Estate planning involves health care directives like a ”living will” in case you become unable to make medical decisions for yourself. Safeguarding your legal and financial well being requires choosing an experienced estate planning attorney so that you have all the options available explained to you accurately and in a proper way.
Trusts
One method of estate planning is a properly funded Trust that allows your estate to be transferred without probate. With no court involvement, the family suffers no financial loss from probate expenses. If the need for guardianship arises, it can get very expensive. Expensive probate guardianship proceedings can be eliminated or minimized by a trust and accompanying estate planning documents.
Wills
Making a last will and testament is another method of estate planning but the entire estate involved must be probated for a will to have legal effect. Still, this might be a better choice in Michigan because Michigan has a simplified probate process for small estates (under $100,000). You need a will for any property that doesn’t make it into your Trust and you can use it to name a personal representative. Your personal representative, also known as ”executor”, is the party responsible who ensures that the provisions in your will are carried out after your death.
Find a Professional
Wills, probate, trusts, estate and financial planning in Michigan may seem complex, but if you want to have control over what happens to your assets when you pass on, then making a proper financial and estate plan in conjunction with an experienced probate attorney, will simplify everything for you, and more importantly - simplify things for your family.
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Living Will Definition - What is a Living Will?
March 13th, 2010A Living Will is a legal document that permits you to instruct healthcare providers the use or non-use of certain life-prolonging medical procedures in the event that you become terminally ill or permanently unconscious and therefore unable to communicate your own wishes.
These life-prolonging medical procedures are generally intended to keep the patient alive rather than fixing the underlying problem, which more often than not is virtually untreatable, such as multiple organ failures or perhaps severe brain damage.
As a general rule, Living Wills only become effective if you are no longer able to make your own decisions. For example, if you suffer serious brain damage in an accident or suffer an incapacitating stroke, you may be permanently unconscious and unable to communicate your healthcare wishes.
In a case such as this, a Living Will directive lets your doctor know your wishes concerning the receipt or non-receipt of certain medical procedures. A Living Will document also allows you to nominate a person who can either enforce or revoke the decisions made in your Living Will.
Since it is a legal document, the health care provider and your immediate family would be compelled to put your wishes into action. On top of that, a living will would certainly guarantee that your decisions about your medical treatment would be respected no matter what happens.
It is plain to see that Living Wills are a vital part of estate planning and every good estate plan should include a Living Will declaration, giving you a large degree of control over your own medical care.
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Shared Living Trusts For Married Couples
March 12th, 2010For couples, there is an option of creating a shared living trust which will cover the property of both parties. However, it is not a requirement for every couple. If each spouse owns one’s separate property, it might be better for each spouse to create an individual living trust rather than having combined one. Generally it is preferable to create single, shared trust in case they share the ownership of the property.
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Are You Too Young to Make a Will?
March 11th, 2010A will acts as an ‘insurance policy’ meaning you decide who will benefit from your Estate and how your assets will be distributed. A Will only comes into force after death. Anyone who has children, a property or savings should write a will.
Research shows that 70% of the population do not have wills and many reasons for this include:
Superstition
Not wanting to think about death
Scared of solicitors
The presumed cost
Immaturity
It is sometimes considered morbid or even daunting to be considering making a Will but there are possible consequences of dying without preparing one. By assuming that your partner or children will inherit everything when you die leaves the fate of loved ones uncertain.
If you die without making a Will the Government will decide how your Estate will be distributed by 80 year old intestacy laws. This means your hard earned Estate will be distributed by the Government on their terms and your family wishes would not be considered.
Examples of this is unmarried couples who live together, own their home and have children. With no Will in place, there is no automatic right for one of them to inherit their deceased partner’s home or possessions. Married couples and those in civil partnerships, enjoy slightly better rights, but still have no right to the full estate.
In extreme circumstances where there are no surviving relatives, it can all go the Crown. None of us like the thought of dying but do not be put off from preparing your will. The only way of protecting your Estate and from intestacy law and leaving an inheritance to your loved ones, is to prepare your will.
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Living Wills - Put Your Refusal Into Writing
March 10th, 2010Due to the advances in modern medical science, it is possible to artificially prolong life. This inevitably divides schools of thought. There are some people who think that being hooked up to a life support system is not agreeable, and those that having had life prolonging measures administered, think that nobody has the right to “pull the plug” on life. It is obvious that the only person with the right to make this decision is the patient, and the only way that the wishes of a patient can be taken into account with no argument is via a living will declaration.
Although you may not have thought of this concept, the more you weigh up the pros and cons of a living will directive, you will begin to realise that it is not such a bad idea. By putting your wishes into writing you will ensure that your chosen health care outcome will happen. Planning and preparation are vital to achieving your wishes.
There are many reasons why people would choose to refuse medical treatment, but most would fall into two distinct areas.
The first being when the overall benefit of medical intervention, particular medication or procedure was not substantial enough to outweigh the associated discomfort and risk to the patient. In this case the patient may choose to refuse treatment.
The second area for refusal of treatment would be the existence of intolerable circumstances such as tube feeding when used as a life sustaining intervention when given to a patient with an irreversible condition like vegetative state. This could be interpreted by some people as prolonging the suffering of both patient and the immediate family.
If you want certain types of treatment to be withheld when you are no longer able to make those decisions for yourself, then specifying your wishes by writing a living will would be the answer.
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10 Reasons You Need to Make a Will
March 9th, 20101. If you die without a will you will have died intestate. This means your loved ones could suffer unnecessary financial hardship or additional distress.
2. By having made a will, the legal aspects of dealing with you affairs will be much easier, for all involved.
3. Without a will you’ll have no control over who inherits what. Your estate might not be shared as you want it to be. Friends and unmarried partners definitely won’t receive anything. So if you want to make sure that your loved ones can benefit from your estate, then you’ll need to make a will.
4. By making a will, you can name the people or charities you want to benefit. This means that you know exactly how your estate will be divided in the event of your death.
5. If you’re a parent, then you’ll want to make a will to ensure that you say who you want to bring up your children if you die. Without a will, the courts could decide to appoint somebody to bring up your children.
6. By having a will, you can decide who will bring up your children in the event of your death. You might want to choose your partner, or a suitable friend or relative that you can trust to do a good job with your children.
7. Without a will, you’re estate may need to pay inheritance tax. This is currently at 40%. Because many houses are now worth so much money, a lot of people’s estates will be subjected to inheritance tax when they die.
8. By making a will, and planning for your death in advance, you can minimise the amount of inheritance tax that will need to be paid. It’s possible that you can utilise the knowledge and experience of a wills and probate solicitor so that there is no inheritance tax payable at all.
9. It can be a costly and messy experience to sort out your assets and estate if you die without making a will. Your family will need to pay solicitors to help establish the situation and it might be that a huge proportion of your estate goes to solicitors rather than the people you want it to go to
10. By having a will, and setting out clear guidelines of what you want to happen when you die, you can save your family and other loved ones a great deal of distress. It might be that your family don’t need to employ a specialist will and probate solicitor in order to distribute your estate, as everything will have been detailed in your will.
Now you know just how important making a will is, isn’t it time you made one and reduced the amount of distress your loved ones will suffer in the event of your death?
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Probate Procedures
March 8th, 2010To deal with many deceased estates, a grant of probate needs to be obtained from the Supreme Court of Victoria.
To obtain a grant of probate, the following general steps usually need to be completed prior to obtaining a grant:
The Executor/s intending to apply for Probate need to place an advertisement on the Supreme Court website. At this stage the original Will and Death Certificate are required in order to complete this step. Generally if two Executors are named in a Will and for whatever reason only one Executor intends to apply for a Grant, leave can be granted to the remaining Executor.
After 14 days have elapsed since first advertising on the Website, Probate documents can begin being drafted. Details required to complete this step include a list of all assets held by the Deceased and any Real Estate owned by the deceased, along with details of the value of the Real Estate and personal assets. These details need to be exhibited to the Affidavit of the Executor/s along with the original Will and Death Certificate.
Once the Affidavit of the Executor/s has been sworn and other supporting documentation supplied, documents can be lodged at the Supreme Court where a filing fee is payable. This step usually takes one week but the time can vary particularly if there are any requisitions made which would usually require Supplementary Affidavits to be lodged.
If Probate is granted to the Executor/s it is then the responsibility of the Executors to carry out the bequests contained in the Last Will of the Deceased. Duties may include the sale of Real Estate, shares and assets held by the Deceased.
Although every Estate varies and situations differ most applications for Probate follow the above steps.
Some individuals can also make an application under Part IV of the Administration and Probate Act 1958 if they believe that they are not adequately provided for in the Will.
Application can also sometimes be made to the Court for the proper interpretation of a Will if there is uncertainly as to the meaning of the Will.
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Leaving a Will Through Video
March 7th, 2010A film testament is just a bestowal that is stored on video, any method of film would be used, but it is important that it be retrieved on a format that should last, such as a DVD. movie wills might not be used to take the place of a written bestowals but could be employed to supplement it. They must be used as a method of backing up the written bestowals and also as a way to show that the deceased was competent when the original wills was written. Video wills can help to eliminate a testaments contest and will be employed to clarify the intentions of the deceased.
Film wills are not legally binding in many states and therefore one will consult an attorney to determine if your state accepts this form of bestowal. Once the bestowal is made it will be held in a secure place, if an proxy was applied, it must be his/her responsibility to see to its safekeeping. If an attorney was not used, a safe deposit box may be a good idea.
Movie wills would be as quick or elaborate as one wishes. They should be clear and to the point and leave no question as to your wishes. You will say anything one wishes, your desires, intentions, or just messages to friends and relatives. In the end, it is your wishes that are paramount, it is your life that matters. A film bestowal will see to it that what one needed is done the way you required it.
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Nancy ran across some information about leaving video will s. A related topic to this would be a legacy video for the whole family. Article Source: |
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