NEW JERSEY LAST WILL AND TESTAMENT
So, you are considering doing a will, power of attorney, living will, or maybe all three. Good. The honest truth is that people who have these documents are better off than people who do not.
And I don’t mean in a metaphysical way or in ways that aren’t real. Let’s talk about how each of these documents is crucially important to you and how you could benefit from having them.
The most popular–or at least requested–document that we get information requests about is the Last Will and Testament. For many people, this is the gateway into estate planning. At its core, the Will sets forth exactly how you want things to be handled when you pass away. You get to choose who gets what (and when). This allows you to say things like “I would like my grandchildren to have $10,000 a piece, but not until they are 25 and mature enough to appreciate it.” You also get to choose who will make sure that this happens correctly (this person is called the Executor). If you don’t do a Will, the government will choose all of this for you.
Many people don’t realize that without a Will, the family member who will take care of everything (in this case called an “Administrator” instead of “Executor”) will have to post a bond with the court.
First, this is expensive; bonds will start at several hundred dollars a year and go up from there. While ideally an Estate will be administered in 9 months, it typically takes just a little over a year. This has the unfortunate side effect of making the bond re-post (incurring an additional charge).
Second, this is time-consuming and slightly embarrassing. The family has to deal with funeral arrangements, paperwork, being there for one another, among other things. They then have to take time away from their jobs and grieving families to go to a bondsman and justify their personal finances. You see, if your credit score isn’t good enough the bondsman won’t give you a bond and you will therefore not be able to take charge of the estate.
When working with an attorney, you can direct that the Executor serve without having to post a bond. There can actually be a direct cost savings in doing an estate plan with an attorney based on this factor alone because the cost of two bonds can quickly be more expensive than doing a simple will. In every case however, it saves the time of having to purchase a bond and the embarrassment of family members having to talk about their personal credit scores with one another.
Most people don’t think about guardianships. Why would they? But they are expensive and divisive litigations when they prop up within families. Read more about that here. An uncontested guardianship will probably cost somewhere between $5,000 and $10,000; a contested guardianship will cost much more than that–not uncommonly $50,000 or more (depending on how contested). The crazy part about this is that these can be completely avoided in almost all cases by a person having a very cheap document–a durable or “springing” power of attorney. That’s because either of these documents will make a guardianship proceeding unnecessary. We believe in them so much that we include them with every Last Will and Testament that we do (although not every client–for whatever reason–executes one).
A regular power of attorney will generally let the designated “agent” (the person you trust) do whatever you could do, with certain exceptions. But the basics like banking, check writing, paying bills, are generally acceptable if done in the best interests of the “principal” (you or the person naming the agent). The problem with a regular power of attorney is that it lapses when someone is declared incapacitated, which also happens to be precisely when you need it the most. Therefore, the regular power of attorney will not avoid a guardianship proceeding.
A “springing” power of attorney is the direct opposite of the regular power of attorney. It will not transfer any power until a person becomes incapacitated. Generally speaking, the powers conferred are much the same as a regular power of attorney. It is just a question of when it confers those powers. Generally speaking, we do not recommend these (your mileage may vary) because family members will tend to write checks prior to a declaration of incapacity, which can lead to unwanted “gray areas”.
A durable power of attorney is the combination of these two time period. It is effective before and after a declaration of incapacity. Therefore, the durable power of attorney is usually the best document to avoid the cost and delay of a guardianship proceeding.
These documents–now working together with the POLST form–tell doctors and loved ones what healthcare decisions you would make when you cannot respond for yourself. These are extremely important documents in two ways. First, obviously, they make your wishes known so that doctors can give you medical treatment according to your preferences (whether they are informed by religion or your personal philosophy). The second and perhaps less thought of benefit is that it will take the guilt away from your family should they be in a situation where they have to decide whether to take out a feeding tube or retract life support. Without such a document, the next-of-kin will be asked what your preferences are. They will then spend many sleepless nights, both before and after they make the decision, second-guessing their decision. That can be avoided by putting down in writing what your wishes are.