By John Zollo
A Will is not something you think about having every day. However, both a living will and a testamentary will are two essential documents every adult should have. Understanding the difference between the two and the value each possess is arguably one of the most necessary priorities one must have for both yourself and family.
What’s A Living Will
A living will assures a person’s religious beliefs, medical care preferences and personal opinion should be honored, in the event of a tragedy or are unable to speak for oneself. A living will includes instructions or medical directives in the event you are not able to speak for yourself. Some examples could include a coma, terminal diagnosis, seriously injured or at the end stages of dementia. A living will instructs family, legal proxy and doctors that your medical preferences are honored.
A living will can unburden family and loved ones from making decisions regarding life support. Asking someone you love to “pull the plug” so to speak can haunt that person for a lifetime. Making the decision ahead of time, gives everyone you love the chance to obtain closure on their own terms.
Organ donation is a very tricky subject. Given the minute amount of time a decision must be made to donate organs, a family member may not be receptive to the thought. They can only see the imminent future; a life without you. If you are the selfless and heroic type of person who wishes to save a life… or six, in the event that yours can not be, a living will can specify choice.
Do Not Resuscitate/Do Not Incubate: While you only need to tell your physician to include a DNR or DNI request in your medical records, you should always include this advance directive in a Living Will. Other specifications include dialysis, pain management, feeding tube and any objection to medication.
Executing a power of attorney: A living will should designate someone who will act on your behalf to make medical decisions if you are mentally incapable of making them yourself. Not having a power of attorney or a health proxy can result in disputes between loved ones and expensive legal and court proceedings for an appointed guardian.
Since a tragedy can happen at any age, it’s recommended that adults obtain a living will as soon as possible.
A Testamentary Will
Avoid bickering and family turmoil after your passing, by having a legally binding testamentary will. While every individual’s needs will vary, there are a few basics that should go into the preparation of a testamentary will.
Drafting a will or trust can be done to meet your specific wishes and goals, ensuring that your beneficiaries’ needs are also taken care of.
Prevent unintended beneficiaries: From transitioning ownership of a business to distributing family heirlooms, a Will gives you sole discretion over how you want to spread out your assets.
Testamentary Will vs. Living Trust: A testamentary will is a legally binding document, signed and witnessed and can be amended at any point during your lifespan. In short, a Will is a property distribution document. A Living Trust is more like a lifetime wealth and property management plan that can be distributed at any point during or after your life. A will also passes through probate, meaning a judge oversees the validity of the will and assures the instructions are followed according to your wishes. A trust does not.
Guardian of Minors: Identifying a guardian and conservator for your minor children in a will or trust lets others know the people you wish to care for your children if you die prematurely.
Assets & Savings: Examining your assets prior to preparing a will or trust is a good practice. It can help determine whether you need special estate planning, which can help minimize inheritance taxes.
Principal or Attorney in fact: Identifying an attorney-in-fact or a principal in your will, allows you to appoint someone to handle your business and financial affairs without the expense of establishing a court appointed conservatorship. Note: the principal must sign a power of attorney document to validate this request.
Allowing your estate to be distributed by others without a will (or trust) can result in expensive and hostile legal battles that will most likely lead to court intervention. By preparing a comprehensive estate plan can only help give you peace of mind. Knowing that you have made thought-out plans for your future, your family and friends, allows for the mental freedom and well-being you are deserving of.
John Zollo is a Smithtown attorney who has been practicing law since 1984. The law offices of John b. Zollo, a general practice law firm, focuses in general litigation, personal injury, municipal law, land use and environmental compliance, wills, trusts and estates, civil litigation, criminal cases, and appellate practice. Mr. Zollo is a former Town Attorney for the Town of Smithtown and former Defense Counsel for several well respected insurance defense firms.