Wills and Powers of Attorney 101

 This article was contributed by Shelley Elder, Esq.

Drawing up and updating wills and powers of attorney are two of the least favorite tasks for most Americans. The majority of Americans still decide to die without a will (also called dying intestate). In fact, 55% of all Americans die intestate! 

When you die without a will, the court will ultimately decide who has guardianship of your minor children and how your personal property will be distributed to your heirs. Do you really want defer your estate disposition decisions to the courts? 

What is a Last Will and Testament? 

A will is a legally binding document containing the instructions for the disposition of your assets after death.  In other words, your will provides all the details of who will get what and when they will get it after you die. 

This is the most popular method of transferring property to family and friends.  A will is not effective until death and can be revoked up to the time of death or until there is a loss of mental capacity to make a valid will. 

With a will you can choose the person who will be your Executor and free him/her from the legal obligation of posting a bond.  If no executor is named or if there is no will, the person named by the court to represent the estate is called the administrator/personal representative, and will need to have the ability to post a bond. 

Wills can always be contested.  Most contested issues arise because a disgruntled heir is seeking a larger share of the decedent’s property than that he/she actually received.  Arguments raised include: the decedent was improperly influenced in making gifts, the decedent didn’t know what they were doing (insufficient mental capacity) when the will was executed, and the decedent didn’t follow the necessary legal formalities in drafting his/her will. 

Because wills can be contested, it’s a very good idea for people to hire an attorney to draft wills, rather than doing it themselves.  When a will is contested, the estate is frozen and assets cannot be transferred immediately to loved ones.  A well-drafted will can avoid many will contests and allow for quicker resolution. 

What are Powers of Attorney (POA)? 

A POA is one of the most important documents you can prepare.  One individual designates another to take over his/her affairs in the event of incapacity or absence.  A POA is effective only until the moment of the individual’s death or revocation. 

The powers granted usually include such things as handling banking transactions, purchasing/selling real estate, entering into contracts, and filing tax returns.  You have the power to grant additional powers to your agent. 

You may also prepare a Special POA to allow your Agent to handle specific situations when.  You may be traveling outside the state or country, or you may be unable to handle a specific situation because of other commitments or health reasons. 

A Health Care POA is a document that allows you to appoint a person to have the authority to make health care decisions on your behalf if you are unconscious, mentally incompetent, or otherwise unable to make such decisions.  You can express your wishes about whether you wish to receive “life-sustaining procedures” if you become permanently comatose or terminally ill.  This will help your agent know your wishes as he/she makes decisions for you.  Even if you do include this in the document, you should still discuss the Health Care POA with your agent, expressing your wishes, values and preferences about health care. 

Remember none of us plan to die or to become incapacitated. The most important reasons to have wills and powers of attorney are to transfer assets where YOU decide, to ease the administration and to decrease costs.

The content of this article is for educational  use only and should not be taken as advice for your specific situation. For advice specific to your situation, consult an attorney.

Shelley A. Elder, Esq. is an attorney at Elder Law Firm located in Kennesaw, GA. She is a graduate from the University of Delaware with a BA in Criminal Justice and Widener University School of Law with a Juris Doctorate. As a lecturer to public and professional groups, Shelley excels in sharing her knowledge on the importance of estate and business planning. Shelley’s care, compassion and tireless dedication help to ease the legal, financial and emotional difficulties upon the death of a loved one. Contact Shelly at: 404-783-2244,  selderlaw@aol.com or at www.shelleyelder.com