Living Wills Tag

Why Writing Your Own Will Is Risky Business

It is important to make advance decisions regarding your estate and your beneficiaries. However, it is advisable to have the assistance of an estate planning attorney. What are some of the risks of trying to write a will on your own?

• Estate taxes – While current estate tax laws allow for quite a large estate to pass on to heirs tax-free, you want to be sure that you keep up to date with current estate tax legislation so that most of your money doesn’t end up going to the government instead of your family.
• Missed details – It doesn’t matter how many times you double check your work if there is something you are unaware of that should be written in advance. Boilerplate wills that are available online don’t fit every situation, so you may be omitting important information.
• Legal loopholes – Every state is different when it comes to succession, so you want to be sure that you are working with an attorney who knows the legal language to use for the state that you presently live in.

California’s Premier Estate Planning Attorneys

If you live in the San Diego area, contact the Petrov Law Firm today to get the best legal help in planning your will, executing advance medical directives, setting up trusts, and more. Our assistance can allow you to have peace of mind, knowing that your wishes will be carried out. To get started on your estate plan, or to update an existing plan, call us today at 619-344-0360.

Mistakes to Avoid When Planning for Your Future

You may have always thought of it in terms of end of life decisions, but estate planning is really all about planning for the future. Many of your advance plans may still be enacted while you are alive. Here are a few mistakes to avoid when you plan for the future.

• Not making advance medical decisions – Are you willing to be revived or to have your life prolonged by machines? Are there certain treatments that are unwilling to accept for ethical or religious reasons? Making these decisions in advance and appointing someone to speak for you medically if you are unconscious are important when it comes to having your medical wishes carried out.
• Failing to update your existing estate plans – Maybe you created an estate plan several years ago but have not checked it since. Have you had any major changes in your assets since then? Did you get married, divorced, have a child, or change your family in some other way? Looking over your estate plan every few years and after any major life event is important to ensure that your current wishes are reflected.

Plan for Your Future with Help from an Estate Planning Attorney

Petrov Law Firm has southern California’s estate planning attorney experts. If you need to develop an estate plan, set up an advanced health directive, or even update an existing estate plan, we’re here to help. And don’t forget that every state has their own laws regarding succession, so if you set up your estate plan before you moved to California, you need to make sure it will still carry out your wishes here. Call 619-344-0360 to schedule a consultation today!

Never too early for an advance directive

Typically when we think of creating living wills and advance directives, we imagine an elderly person who may be ill and hospitalized and is in need of legal documents outlining how everything should be taken care of once they are unable to make the decisions themselves. However, it is a good idea to consider an advance directive earlier on in life. By thinking ahead and outlining a plan for care before you find yourself in a compromising situation, you will be in a clear state of mind to designate the steps you would like for your loved ones to take should you become incapacitated. Often times, when we wait until we are hospitalized to draft up an advance directive, we might be influenced by surrounding stresses and pressures.

An experienced attorney will help guide you through the steps of drafting and signing an advance directive. It is important to have the text of your advance directive be as clear as possible as this will serve as your voice when needed. An attorney will make sure the right persons are listed for care and your wishes are unambiguous for the next person to interpret.

Being Specific in Your Health Care Directive

“I don’t want to be hooked up to tubes and machines.” This is one of the most common wishes for people who are trying to vocalize their end of life wishes. However, tubes and machines don’t always mean it’s the end of the patient’s life. While creating a health care directive, you need to be specific — medically specific — so as not to leave vague instructions that could mean unnecessary stress or legal actions.

While you should consult with an estate planner to create a comprehensive health care directive, you might also consider consulting with a physician. Health Care Directive need to be created through a series of realistic scenarios, and you need a coordinated effort between your doctor and your lawyer to make sure you wishes are reflected in your end of life instructions.

Often, people are very uncomfortable when discussing end of life health issues. In order to shorten the conversation, they will use broad, vague statements (like to one above) to avoid the painful conversation. Your lawyer can give you a set of questions that you can review with your loved ones and your doctor.

Keep in mind, tubes and machines aren’t just a way to keep you alive — they keep you alive to help you get better. Two months on a machine might mean another ten years alive.

It’s critical to review the questions and the answers with your family. They might be surprised at your decisions, but it’s better to discuss your answers now, in person. Then, your answers feed into your estate plan creating a comprehensive health care directive. The process can take several weeks and generally will involve several conversations. So, start now.

Living Will vs Power of Attorney

Naming your health care representative will be a critical piece of your living will or health care directive. Unfortunately, conflicts arise when a health care representative refuses to carry out the directives stated in the patient’s living will. Although the living will technically takes precedence over the word of a health care representative, these representatives have power of attorney and, in some jurisdictions, can revoke the original living will

In these circumstances, the cases will frequently go to court soaking up the time and energy of the family members left to discern the right choice. There is a simple, but difficult, solution to avoiding these kinds of conflicts. Talk to your family.

After you and your estate lawyer write your living will, sit down and discuss your decisions with your family. You may quickly discover that the person you’ve named as your health care representative will be unwilling to make these end-of-life decisions on your behalf. In addition, by clarifying these choices as your own, you reduce the likelihood of family members battling over options if you are incapacitated.

As medical treatments increase in their capacity to keep us alive, they also increase the chance of conflict over what are the right decisions for your end-of-life care. Take the time to carefully craft an effective health care directive and you will ease the burden on your family when you can’t speak on your own behalf.

POLST and Living Wills

In 2009, the POLST (Physician Orders for Life-Sustaining Treatment) form became a recognized compliment to a living will or advance care directive. While living wills and advanced care directives are designed to give guidance on your behalf, the POLST is a document intended for physicians to follow if you have a terminal illness or a prognosis of less than one year.

The POLST form is a standard form easily recognized by the variety of caregivers you might encounter during your medical treatments. Because physicians can treat terminal illnesses, such as cancer, with so many methods, the POLST prevents you from making frequent decisions about your wishes. The POLST also prevents you from enduring the same difficult conversation by allowing one or more doctors to make pre-approved treatment decisions for you.

Generally, you will not include a valid, completed POLST form when you and your lawyer are creating a health care directive and estate plan. However, the health care decision-maker named in your living will must sign your POLST to make it valid. When you share your end of life decisions with your health care decision-maker, you can also introduce him or her to the POLST form.

While the POLST will have to be newly-completed if you start treatment for a terminal illness, having previously drafted a copy of the form will make the decision making process easier for you and your family.

An Unfair Will

Frequently parents are confronted with the moral dilemma of how to divide up their estate among children so that jealousies and rivalries don’t flair. Successful heirs frequently don’t see how their less fortunate siblings deserve the same or more inheritance. Less fortunate siblings often feel isolated from a family that never seemed to understand or care about life’s difficulties.

Fortunately, with very little investment, parents can leave as much or as little money to each child — with each child being unaware of the other’s share. By creating a separate trust for each child, there are very limited ways for each child to know how much the other(s) inherited.

There are several types of trusts, and an estate lawyer can help you prepare your estate plan to keep the peace after your passing. Setting up multiple trusts is also a way for you to ensure your money is used wisely and as you’d prefer. For example, if you have a successful heir with his or her own children, you could leave money in a college fund for the grandchildren. If you have an heir with a poor history of money management, you can set up a trust to slowly dole an allotted allowance over the course of your child’s life.

Of course no estate plan is completely free of risk. No matter how many trusts you establish, heirs can file lawsuits and contest your will. However, if you simply communicate this plan with your heirs, your family should remain a cohesive unit after your passing.

New State, New Will

There are many, critical variances in probate laws. Specifically, how each state views trust laws and powers-of-attorney laws. These are especially important aspects of your will that can mean dramatic changes if they aren’t upheld by California courts. Even if California probate courts ultimately uphold the plan you created in your previous home state, there might be a lengthy review process by the courts before your assets are released to your benefactors.

More important than you assets, are you health-related documents. Not only do laws vary from state to state, but treatment options change as well. In addition, if more than three years has passed from the creation of your estate plan, you need to update the health directives to keep pace with the advancing fields of medical treatments. For example, a DNR order from ten years ago is out of date with the kinds of medical options available today.

When updating your will and health-directives because of new home state, you will find that 95% of the estate plan will remain the same. However, the remaining 5% that needs edits can make the difference between a smooth transition for your family and difficult one.

Witnesses to a Will

The witnesses to the will are as critical to the validation process as your signature at the bottom of the will. Today, most wills come with documents (self-proving affidavits) to prove the identity of those who witnessed the will. Without that documentation, the executor has to track down the witnesses and provide proof of their identity.

Without the self-proving affidavits, there are legal options to prove the identity of the witnesses even if they have passed away. While time consuming and expensive, verification by a hand-writing specialist is generally acceptable by modern probate courts.

If you’ve gone through the trouble of having written a will, ask a legal professional to review your will and ensure the witness verification paperwork is sufficient. If you don’t have a will, or your will is out of date, hire an estate attorney to guide you through the logistics of creating an iron-clad document.

Storing Your Will

Make several copies of your will. Add a cover page to each copy with an indication of where the original is being kept. Keep at least one copy of the will in your own documents at home. If you are comfortable, give another copy to the person named as the executor of your will. If you don’t want anyone to read your will before you pass, at least hand out instructions as to where the original is stored.

Avoid using a safety deposit box to store your will. Generally, there are several, strict security measures in place for opening safety deposit boxes, and the death of the box’s owner only makes accessing the box more complicated.

Your local county clerk (or other municipal office) may store your will for a nominal fee. Because this is a lesser-known location to store a will, make sure you provide sufficient instructions as to the local office where you filed your will. In addition, there may not be strict privacy laws that protect your will from being reviewed prior to your death.

If you want to keep the original in your home, buy a fire-proof lock box to store your will. Generally, these boxes are helpful for keeping critical papers such as your will, the title to your cars, and any precious jewelry.

Your lawyer may offer to keep the will in his or her office. This is generally the best idea, however, as mentioned above, leave your family the name of this lawyer, his or her address, and contact information.