Major documents every homeowner should create
Without will or power of attorney, distributing assets after death gets tricky
By Benny Kass, Monday, April 14, 2008.
DEAR BENNY: My aunt, age 83, has no other living relatives than my sister, my two brothers and me. She is completely reluctant to make out any of these documents: a last will and testament, a durable power of attorney, a power of attorney for health, a living will (advanced health-care directive) and a power of attorney for financial matters. I believe she should have them all. Could you tell me the consequences of not having each one of these? I'm fearful that when she fails, or is debilitated, it will make it even more difficult for us to do the right thing. Maybe, if she sees your answer, it will get her to make a decision. --Eileen
DEAR EILEEN: You can lead the horse to water, but you can't make it drink. You can make recommendations to your aunt, but only she -- assuming she is competent -- can make the final decision.
Let's take each document:
Will: If your aunt dies without a last will and testament, the laws in your state (called "intestacy") will dictate how her assets will be distributed. That can lead to family fights, and the distribution may be contrary to her wishes. But unless she reduces her desires into a will, the probate judge will have to be guided by the laws of your state.
Living Will: We all remember the Florida fight over whether the life support systems for Terri Schiavo should be removed. If your aunt should be determined to be brain-dead, but still alive, her doctors need guidance. In the absence of a living will, they may have to ask the local court for assistance, and this will cost money and may end up wasting your aunt's assets.
Durable Powers of Attorney: Once again, should your aunt have a stroke, and not be able to communicate or write, who will make decisions for her? Who will be able to sign checks to pay any of her bills?
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.
