Do I Need A Will?

by Lisa Godfrey

Less than one-half of all American adults currently have a will. Anyone who acquires assets (such as a house or investment accounts) and who has a family (particularly if that family includes minor children) should seriously consider leaving a will.

The property of individuals who die without a will passes by the laws of intestacy. These are state statutes which determine an individual’s heirs-at-law who are entitled to receive the property of individuals who have not designated, in advance, how they wish their property to be distributed.

For anyone with a family (including minor children) and particularly for those with more than one marriage, a will is essential to provide certainty and control over the distribution of assets at the time of one’s death.

Wills usually provide that property left for the benefit of minor children be left in trust. A trust is an arrangement whereby an individual (adult) or corporate trustee holds property for the benefit of minors. Usually, the interest or income from the property can be paid to those individuals who have care of minor children during their minority. In fact, a trust can extend the period of time during which the adult or corporate trustee controls the property well past the legal age of majority, which is 18 years of age.

If there is no will in place that provides for a minor’s property to be held in trust, property inherited by minors must be paid into the Clerk of Court’s office, where it will be held until the minor child reaches the age of 18 years. This is a cumbersome and expensive arrangement, and usually provides little flexibility for the provision of the minor’s needs.

Many people do not realize that property willed to minors can be left in trust with individuals other than those who have actual care, custody and control of the minors. In this way, the property can be preserved for future endeavors such as college and/or higher education.

Perhaps an equally or more important document to consider is a general power of attorney. This document comes into play if an individual becomes disabled to the extent that he or she cannot make or communicate decisions regarding income or assets. It is fairly simple to designate someone to act as one’s power of attorney. The lack of a power of attorney may require relatives to apply for a court sanctioned guardianship for an incompetent adult. Again, this is an expensive and cumbersome process, and rarely provides the ease or flexibility that a power of attorney can provide in the event that someone becomes disabled and/or incompetent.

Finally, most people wish to have a document which expresses their wishes relating to health and life matters. This can be done either through a health care power of attorney or a living will.

A health care power of attorney designates a particular individual to make health care and end-of-life decisions for someone who is no longer able to communicate his or her wishes in these areas. Usually, a close family member is designated. A health care power of attorney can avoid family disputes regarding end-of-life decisions. One person, rather than a committee, is designated to make these decisions.

Another document that is frequently used in this regard is a “living will”. This document is a written directive to health care providers and family members that expresses the wishes of the individual if he or she is terminal and/or in a persistent vegetative state. Living wills are limited to instances in which the individual involved is terminally ill. Thus, a health care power of attorney can provide greater coverage and flexibility if the individual is not terminal or in a persistent vegetative state.

Some individuals attempt to draft their own wills, living wills, health care powers of attorney and powers of attorney. This is not advisable. These are important legal documents, and can usually be drafted by an attorney who practices in areas of wills, estates and trusts for a minimal fee. Attempting to draft one’s own will and failing to use proper terminology and/or forms of execution can cause more problems than it solves. Most individuals would benefit from a consultation with an attorney regarding all of these matters.

Lisa Godfrey is an attorney in the Charlotte office of Knox Law Center. The firm’s website She can be reached at 704-315-2363 or 866-704-9059 (Toll free) or[email protected].

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