Why You Need a Living Will: Don’t Be Caught Without One!

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A couple of years ago, after our daughter was born, I dragged my husband to a lawyer’s office and forced him to go with me to meet with a lawyer about drafting a will, living will and durable power of attorney for health care.

He did not want to do it. (More specifically, my husband didn’t want to do it, not the lawyer. The lawyer was perfectly happy to part us from our hard-earned money.)

I couldn’t understand why. I must have asked, “Why? Why? Why?” a dozen times. Why wouldn’t you want to be a responsible adult? Why wouldn’t you want to provide for your loved ones in the event of your untimely death?

He didn’t want to think about his own mortality.

Oh.

I was pretty insensitive to that. “Well, too bad,” was my response. I was not going to have him die on me, intestate.

Where there’s no will, there’s no way

Apparently, it’s pretty common for adults to not have a will. According to 2015 Rocket Lawyer estate-planning survey by Harris poll, 64 percent of Americans don’t have a will. Of those without one, about 27 percent said there isn’t an urgent need for them to make one, and 15 percent of people surveyed said they don’t need estate planning at all.

And the reason they think they don’t need one? This really cracks me up:

  1. They think they’re not going to die anytime soon.
  2. They think wills are only necessary if you have millions of dollars.

My response to both of these preposterous reasons?

  1. How do you know when you’re going to die?
  2. This is so, so not true. Anyone who owns anything—property, antique coin collection, and especially if you have children—you need a will.

Durable power of attorney/durable power of attorney for healthcare

In addition, another document that you should seriously consider getting is a durable power of attorney. A durable power of attorney is a legal document that allows someone else to act on your behalf, in the event that you are incapacitated.

A durable power of attorney for health care allows you to have someone—your agent—carry out your wishes. This is super-important because you are in a position to choose well in advance of something happening who you trust to make medical decisions for you.

Living will

A living will is different from a durable power of attorney for health care, in that it’s a document that provides direction for your loved ones about your preferences for end-of-life care. It does not appoint anyone to make your health care decisions like a durable power of attorney for health care does.

living will
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Here are several other questions to ask yourself if you don’t have a living will, will, or durable power of attorney for health care, or any of the three:

Do you want the courts parceling up your estate?

If you die without a living will, your estate is at the mercy of the courts. Inheritance laws are different for every state, but you can bet that for the most part, spouses, registered domestic partners and blood relatives will receive everything.

Unmarried partners, friends, and charities will get nothing. So, if you know for sure that you want a portion of your money to go to your best friend, he/she may be out of luck if you don’t create a will.

Do you want to avoid a long, drawn-out probate process?

All estates will still have to go through the probate process, which is the court process that will administer your estate. Having a will, however, speeds up probate and explicitly states how you’d like your estate to be split up. If you die intestate, the court gets to decide without your input, and that can cause a much longer delay in the entire process. This is a good way to protect your family from having to experience many delays in the process.

Who gets the kids?

You get to name the guardian of your children by setting up a will—and to me, there’s nothing more important than doing that for your children. If you die without a will, the courts will choose your children’s guardian—and think about how heart-wrenching that could be.

What if you have no spouse and no kids?

You might think you don’t need a will if you don’t have a spouse or kids, but that’s a mistake, particularly if you have very specific intentions for your estate. If you die intestate (without a will) and without a spouse or kids, your parents or siblings may inherit. (What if you really, really don’t want your estranged brother in Mongolia to receive your retirement assets?)

In Colorado, believe it or not, a biological parent who gave you up for adoption could even wind up being an heir—if you don’t create a will.

What about taxes, taxes, taxes?

Another reason why you need a will is to take a chomp out of those estate taxes. No matter what, your family will have to pay estate taxes. But remember, you’ll have fewer if you create a will. If you don’t, your taxes will be higher and your loved ones will get less.

What if I want a charity to receive my estate?

If you love the idea of leaving some of your money (or all of it!) to charity, this is another great reason for why you need a will. There’s no way the courts will know that your intentions are to give your money to the Lustgarten Foundation for pancreatic cancer research, for example. Having a will leaves you the option to explicitly determine the charity and amount of your choice.

Make things less difficult for those you love

If you pass away unexpectedly, it’s already a time of sadness for your family. Why burden your loved ones even more than they already are? Making a will keeps your loved ones from having to deal with court hassles when they instead should focus on dealing with their grief over losing you.

Ultimately, creating a will is one of the most important things you can do for your family. Talk about a real shower of love for the people you love. Whether or not you’re hung up because you’re having a tough time grappling with your own mortality, try to set those feelings aside and create a will for yourself. Your spouse and kids will thank you tremendously for it.

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Melissa is a Midwesterner with a penchant for travel (the further away, the better!) and personal finance. Previously, she worked as a writer/editor for a gardening magazine and has done lots of writing and editing for publications. Now, she works in the admission office of her alma mater, Central College in Iowa. She has special interests in reading about finance and politics, and together with her husband, spends most of her time chasing after their two kiddos.

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