Of all the documents we discuss with, and prepare for our clients, the Last Will & Testament, or will, is the best known and understood. It is the document that allows a person to handle several important matters, including a description of how his or her belongings and assets will be distributed after he or she dies. It is different than what some call a "Living Will," which is the document that describes how a person wants his or her "end-of-life" matters resolved.
In Colorado, and many other states, the Living Will is referred to as an Advance Directive, which helps avoid confusion between it and the Last Will & Testament.
In addition to identifying how a person's belongings and assets will be distributed, the will is also the place where he or she names a personal representative (sometimes called an "executor") to carry out the directions included in the will.
If a person has no will, there is a distribution plan the heirs must follow unless they agree otherwise. We have seen some families do just fine where there was no will, but the chances of disagreement multiply several times over in most situations. Even if there is no disagreement, letting the government decide who will receive the belongings and assets of a person just seems out of place to most of us.
In addition, every parent should have a will for one other obvious reason. If a person has children that are not of adult age, or if he or she has an adult child that is developmentally disabled, a will is the document that allows him or her to name who will serve as guardian if he or she predeceases the dependents. That is not a decision that can be left to the law, meaning there is no automatic solution like there is with a person's belongings and assets.
Instead, if there is a disagreement about who should care for the dependents, or equally important, how the deceased person's money should be used to support those dependents, then the only solution is for a court to get involved and make a determination of what is in the best interests of those dependents. All of that cost, stress and long-term damage to family relationships can be avoided with a will.
Some incorrectly believe a general or special power of attorney is sufficient to name who handles their affairs after they die. That is incorrect because in every state, the authority given in a power of attorney automatically terminates at the death of the person who gave the power.
Several years ago, a widowed friend of ours told us she intended to create a will, but life got busy and she never actually followed through. She had no surviving parents or siblings, but had a son, who she wanted to receive her things; she probably put off paying for a will because she thought that the distribution to her son would be easy.
When meeting with her son after her death, he told us something that completely altered what would happen to her estate. He told us that he was her son because she "informally" adopted him many years ago. He was not her biological son; nor had he ever been legally adopted.
Unfortunately, even though they both acted as though they were related, under the government's rules, their relationship didn't matter. He had no right to any of her estate.
However, had she completed a will, the results would have been entirely different. He would have received everything.
However, because she did not, distant relatives (whom we believe she did not even know) received her estate.
We acknowledge that is an extreme scenario, but we include it here as an example of the unexpected things that can come up and can completely change what a person thought would happen after he or she dies.
Estate planning is far too important to leave to good intentions, so beginning in June, we will be holding a no-cost seminar two Wednesdays a month so that anyone who wishes can find out how simple it is to protect his or her estate.
Seating is limited for each seminar (no more than eight people), so that we can focus on the specific questions of a small group.
Brad Wright's business and estate planning practice includes transactional and litigation matters with a special focus on business succession. His brother, Steve, has a similar law practice in Idaho Falls, Idaho, and together they assist businesses of all sizes and types with a wide variety of legal issues. If there are questions about this column or topics you would like us to address in future columns, send an e-mail to bwright@GJlawyer.com or firstname.lastname@example.org, or call 970-270-1213.