Write it down...write it all down

S.F. Ehrlich Associates |

May 15, 2021

There are certain documents that EVERY adult should have. While we don’t know when any will be required, there is a certainty they will be needed. The must-have list starts with four documents: a will, a durable power of attorney, an advanced health care directive, and a HIPAA release form.  Let's dive in to each.

  • Last Will and Testament: The purpose of a will is not only to tell your heirs how your assets are to be allocated, but also to assign that responsibility to an individual who you trust will ensure your wishes are carried out. Assets aside, if you are a parent with young children, who have you entrusted with the responsibility to raise them if you and your spouse are unable to do so? (By the way, did you get the approval of the parental successors before putting their names in your will?) Should you ever want to update or change your will, you can easily do so by adding a codicil. As most attorneys would urge, if you write it yourself, make sure the codicil is signed in the presence of witnesses.
  • Durable Power of Attorney (DPOA): The purpose of a DPOA is to allow another person to handle financial and other matters on your behalf if you’re unable to do so. It’s one of those documents where, when needed, it’s probably too late to write it. A DPOA is absolutely critical for anyone who is unable to make suitable decisions for him/herself due to health or other reasons.
  • Advanced Health Care Directive: This relates to end-of-life care and the type of end-of-life health care you either want to receive or elect not to receive. Absent a health care directive, your care may be left to the hospital’s policies where you have been taken in the event of a serious accident or illness.
  • HIPAA Release Form: Ever try to call a doctor or lab and ask for the medical records of a spouse? Or an adult child? Or even your own child? A HIPAA Release Form allows for information to be shared where/when appropriate.

When you’re done with the attorney who prepared all the above, sit down and write a personal letter. While the legal documents noted above are all necessary and cover a lot, a personal letter can cover so much more.

A letter that is maintained with your legal documents can include such topics as your preference for where you want to die to explaining why one heir will receive more assets than a second heir. It’s not a chance to get even with hurtful comments, but an opportunity to explain why you did what you did in your will. It’s a chance to express your true feelings, to extend gratitude, and to leave your heirs with a better understanding as to your actions. While it’s certainly not obligatory, it can help your family to better understand your thinking with asset distribution or end-of-life care.

Most attorneys will caution clients not to control too much from the grave. Thus, adding clauses like “no money unless the heir has completed college” or “no money unless the heir is married” means you are dictating standards to be reached before your estate can be liquidated. In fact, sometimes, it puts an executor in a very uncomfortable situation in trying to determine whether or not an heir took action just to receive a check.

What about the costs?  A properly written set of documents can cost anywhere from $1,000 for an individual to $3,000 for a couple (and beyond!).  Is it really worth it?  Yes, yes, and (for good measure) yes.  While it may be more costly, working with an attorney who specializes in estate planning will help you avoid common pitfalls that a software program or general practitioner may not catch, especially in a part of the law (trusts and estates law) that is constantly changing (and will likely continue to change in the years to come).






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