Do I Need a Will? And Answers to Other Estate Planning Questions

Written by Tana M. Fye

Do I Need a Will?

This is probably the most frequently asked question that an attorney hears. And if you're asking the question you likely do need a will. At a minimum, you need to consult with an attorney to determine whether you need a will. Here are a few questions that we use to help determine whether the laws of intestacy (passing away without a will) will be sufficient, or if you need to engage in some sort of estate planning:

• Do you have minor children? If so, estate planning can help ensure that your minor children are taken care of the way that you would want them to be taken care of if you pass away while they're still minors, and that they receive any assets in the way that you'd like them to.
• Do you have adult children? If you have adult children, you need to decide how you'd like your assets to be distributed, whether your grandchildren or any spouses of your children receive anything.
• Have any of your children passed away, leaving a spouse or children behind? If so, then you need to decide whether these folks would receive any of your assets or none of your assets at your passing.
• Is this a second marriage for you or your spouse? Does your spouse have children from a prior relationship? This situation is notorious for creating hard feelings between spouses and step-children, unless estate plans are created for both of the married parties, and the children know what is going to happen upon the passing of either or both of parents.
• What are your assets? Where are they held? Some assets pass outside of probate, meaning just by direction of the parties in a particular document. Insurance proceeds and certain bank accounts are good examples. A competent estate planning attorney can help you decide what estate planning tools are best for the amount and type of assets that you hold.

What Happens to My Young Kids if My Spouse and I Both Pass Away?

This is a nightmare situation that no parent wants to even think about. But making plans for who you'd like to care for your children if you're not able to is just responsible parenting. If married spouses pass away (like in a major accident) and leave minor children, then a court would likely have to determine who raises the minor children. Grandparents, aunts, uncles, and other family, or friends can be put into a very difficult and emotionally wrenching situation of trying to decide (or fighting in court about) who raises the kids, if the parents haven't given direction. And in the worst case scenario, children could be placed in foster care while guardians can be located and things are sorted out. The wills that our office drafts include language directing who should be given priority as potential guardians for minor children upon the passing of the parent(s). 

But What Happens if I Just Become Ill or Am Injured?

In this scenario, there are other documents, besides a will, that would be necessary. A living will would give direction on issues such as life support, feeding tubes, organ donation, so that family members and doctors know what you'd like to have happen.

A Power of Attorney for Healthcare directs who gets to make medical decisions for you, and usually also has a back-up if that person is unable or unwilling to serve.

A General Power of Attorney directs who makes other types of decisions for you. This covers things like banking, business, payment of bills, and general life decisions. This document usually also has a back-up listed, if the initial person selected is unable or unwilling to serve.

Can a Power of Attorney Make Decisions or Act After I Pass Away?

No. A Power of Attorney is no longer in effect after death. At this point, a Personal Representative takes over and administers an estate, often with the assistance of an attorney. Personal Representatives are usually named in a Will, but can also be appointed by the Court.  

What Should I Do if My Spouse and I Are Going on Vacation and Leaving Our Children With Someone Else?

First, you should make sure that you have your estate plans in place, so that if something happened to one or both of you, things are easier for the family left behind. Visiting with an attorney is the best way to make sure that this has been accomplished.

But in addition to estate plans, parents can also sign a Power of Attorney for Childcare, which is a temporary delegation of parental authority. It allows for grandparents or other caregivers to gain necessary information from schools or doctors, or to make medical decisions for your children if need be. Again, this is simply responsible parenting when parents are leaving their children with other individuals for care-giving for any length of time.

In sum, it's important to consult with an attorney about your particular situation to determine if estate planning, and what particular estate planning services are best for you and your family. All three attorneys in our office handle estate planning and would be happy to meet with you or visit with you on the telephone. Please feel free to call and set up a consultation at 402-519-4061 or 308-995-8061.