I often hear people saying I’m young, I have no assets, why would I need a Will or other estate planning documents? It is a general misconception that only people who are wealthy and have accumulated significant assets need estate planning documents. When I am talking with a client who is unmarried and just starting out, I will ask them if they have a Will or other estate planning documents. Inevitably their response is why would I need a Will, I have nothing, I’m not married, what do I need to worry about? Even young individuals starting out often have a bank account, personal property, perhaps a vehicle and/or a small retirement account. They may have debt and they may even have a child. In this situation, if they would pass away, their loved ones would be responsible for initiating court action on their behalf in order to deal with those assets and custody issues. Additionally, a Power of Attorney and Living Will, documents which are utilized when an individual becomes incapacitated or finds themselves with an end stage illness, may be even more important than a Will.
If you are unmarried with few assets but have a child, the need for a Will is imperative regardless of the financial circumstances. A Will allows you to choose the person who will care for your child in the event of your death. Many clients say, "Well, that would be the other parent." In situations where the other parent is an appropriate individual and the individual who the client wishes to raise their child, then this assumption may be just fine. However, consider the circumstances in which the other parent is uninvolved in the child’s life or is not an appropriate individual to care for the child. In those circumstances, a Will is a way in which the deceased parent can communicate to the court what their wishes are with regard to their child after they have died. While that specification in a Will is not binding upon the court, it is persuasive and helpful to the court when evaluating a custody or guardianship award after a parent has passed.
You should also consider the fact that, upon your death, your friends and family members are mourning your loss. It is a difficult and emotional time and having to determine which friends or family members will be responsible for taking care of the decedent’s financial affairs and perhaps even custody issues can be stressful, emotional and financially taxing on the friends and family who are left behind. If a Will has established specific individuals to take care of these responsibilities upon death, friends and family members have been saved some additional emotional and financial strain that would not have been avoided had a Will not been prepared.
Power of Attorney
What about a Power of Attorney? People often confuse a Power of Attorney and a Will. A Power of Attorney is the document that is in force during an individual's lifetime allowing for another individual to act on one's behalf if they are incapacitated. That document, and the authority granted by it, ceases upon death. Upon death, the provisions of the Will then dictate what occurs. If an individual does not have a Power of Attorney and they become incapacitated, friends and family members must then determine who is the appropriate person to make decisions for the incapacitated individual and to handle their financial and personal affairs. Like the importance of choosing the individual that takes care of these very personal decisions at the time of your death, it is just as important to have made the choice of who will handle those same decisions, as well as many others, during lifetime, in the event that you would become incapacitated.
The final estate planning document that individuals consider when doing estate planning is an advance health care directive or Living Will. This document is important if an individual has strong feelings about the type of health care they wish to receive in the event of an end stage illness or incapacity. It is also an important document if an individual wishes to save their family members from having to make difficult end of life decisions with regard to what treatment should be provided. An advance health care directive or Living Will is important if an individual has a preference as to whom they wish to act as their representative when communicating with health care professionals, insurance companies and the like.
Whether you have a $100 in a bank account, a beat-up car and have just begun contributing to a retirement account, or you have accumulated significant assets, it is important to discuss with your family, your attorney, and your other professional advisors the benefits of having estate planning documents in place. The financial cost of preparation of estate planning documents is minimal compared to the emotional and financial savings of having those documents in place in the event of incapacitation or death.
Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning.