Planning for the Future: the Legal Side of Death

According to a recent study, everyone dies. Not just the old, the sick, or the evil. Everyone. It's not something that most of us like to think about. It's not something that many people look forward to even. Actually, people spend fortunes trying to prolong the inevitable and years of their lives fighting for pardons and clemencies to avoid the death penalty. It is for this very reason that I chose to do my final paper on planning for the future. Several chapters in our textbook touched on the subjects of will, intestacy, guardianship, estates, living wills, trusts, and the other areas that I researched. We even discussed the issues in class. They were always areas of hot topics then, and I know that from my real life experience ~ they always will be. These are issues that I feel we must all be better informed about and prepared for. So, here goes for all of us who will die eventually.........

Trusts and estates is the name given to the branch of civil law that covers decedents' estates and probate; wills and intestacy; estates and future interests in property; trusts, gifts, and powers; annuities; and charitable bequests. Probate covers admission of a will to probate and the subsequent proceedings, including the appointment and duties of a personal representative, procedures in probate, and ancillary proceedings. Intestacy, on the other hand, refers to the general rules governing the disposition of the property of someone who dies intestate, i.e., without a will, or who leaves a will that fails to dispose of all assets.

In a will, a person or "testator" expresses, in writing, what he (or she) wants done with his property after he dies. Most states require wills to be signed by the testator and witnessed by two people. "Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person or "decedent" to his heirs. Probate proceedings take place in the probate court or surrogate court in the county of the decedent's legal residence at the time of his death. If a person dies "intestate," meaning "without a will," state law determines how to distribute his property.

If you die intestate, what happens to your property, also known as your estate, will depend on your marital status and whether or not you have children.

Married With Children

The laws of most states award one-third to one-half of the estate of someone who dies without a will to the surviving spouse. The rest of the property goes to the children, regardless of their ages.

Married With No Children

Most state laws give only one-third to one-half of the estate to the surviving spouse. The remainder generally goes to the deceased person's parents, or if the parents are dead, to brothers and sisters.

Single With Children

When a single person with children dies without a will, state laws uniformly provide that the entire estate goes to the children.

Single Person With No Children

In this situation, most state laws favor the deceased person's parents. If both parents are deceased, many states divide the property among the brothers and sisters.

Living wills, sometimes called health care directives, are for adults of all ages, not just the elderly. Some of the most famous court cases about the right to die, including the recent Terri Schiavo case, have involved individuals in their early- and even mid-20s.

There are good reasons to write down your wishes about end-of-life medical care:

* You might be too sick to express yourself when the time comes

* Your family might disagree about what to do, which leaves doctors in a tough spot and more likely to keep you on life support

* You can help your family with the really tough decision of whether or not to take you off life support

* Living wills often include legal protection for doctors and hospitals, so they don't get sued for honoring your request

Different states have different rules for what living wills should cover, but they all allow you to decline aggressive life support if you're close to death, without affecting your right to get pain medicine or other "comfort care." You can also express your views by writing them down. And talk with your family and doctor to give them an idea of what type of medical condition you would not want continuing treatment for. Is it not being able to talk with your family, or to recognize people and express your thoughts in some way? You might learn that your doctor isn't willing to follow your wishes. If so, find a new doctor.

need to be made.

Each state has formal requirements for preparing and signing a will.

Although making a will is a sobering experience, your loved ones and friends will thank you for being so organized and thoughtful ahead of time.

Types of Wills

A holographic will is handwritten, without witnesses. Few states recognize holographic wills, and only in very particular circumstances.

Oral wills, also called "nuncupative wills," are only recognized in a few states and usually only in compelling situations such as the impending death of a soldier in wartime.

A self-proving will is one that has been witnessed and signed with all the formalities required by state law. A self-proving will saves a great deal of time and effort when it turns out that one or more witnesses can't be located or are themselves deceased.

What Should My Will Include?

Your will should detail:

* That you are of sound mind as you are reading and signing the will

* The names, locations and dates of birth of your immediate family, including your spouse and all children, including adopted children. Talk with your lawyer about whether to name illegitimate children and stepchildren to avoid claims that you have simply left them out and would have provided for them if you'd been thinking of them.

* Appointment of a guardian and alternate guardian for any minor children. Your lawyer will be able to tell you whether you should have a separate guardian to manage their finances.

* A list of who should inherit specific items of property.