A will is a legal paper that states who receives your property when you die. A will does not avoid the necessity of probate and must be “probated” to have legal effect. You may title your property in other ways so that probate is not necessary. Any person who is at least 18 years old and of sound mind can make a will.
If you die without a will, a decision as to who receives your property is set by law. Property that you owned alone goes to your close relatives and sometimes to more distant relatives. If no relatives are found, a highly unusual circumstance, your property goes to the state.
Why is It Better to Have a Will?
- You will know that you have planned for your family
- You can say whom you want to receive your valued personal belongings in a list referred to in the will. You can change the list without changing your will.
- Only you decide who receives your property.
- You can nominate a guardian for your minor children.
- You can provide for minor or disabled children in a trust without the court having to supervise by appointing a conservator to take care of what they would receive.
- You can say whether or not you want to make anatomical gifts.
- You can set up a trust for your family.
- You can save on some death taxes.
- You can save some costs by waiving bond and providing for independent administration.
- You can say what you want done with the damages you receive if you die in an accident caused by another person.
... Power of Attorney
If it becomes difficult for you to take care of your personal business because of an illness or injury, you may want to consider giving someone your power of attorney. This means you give someone written authority to act in your name with regard to your financial and business affairs. This is usually a friend or a relative, not a lawyer. The person is called your “attorney in fact.” A power of attorney needs to be in writing and should state your name and the name of the person who will be your attorney in fact. It should list the specific powers you are giving to the attorney in fact. Typically, attorneys in fact handle financial affairs such as cashing and depositing checks, paying bills and buying groceries. Be careful about who you choose, because this person will have an important role in your life.
Durable Power of Attorney
A power of attorney, like the one described above, becomes invalid if you become incompetent to make decisions or when you die. If you wish for your attorney in fact to continue managing your affairs after you become incapacitated you should consider a durable power of attorney.
The document should be titled “durable power of attorney” and should state that the power you are giving your attorney in fact is “durable” and will continue if you become disabled or incapacitated. Sign and date the document and have it notarized. If you want to include real estate matters, you will need to file the document with your local recorder of deeds.
A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person's financial matters without the need of more complex arrangements like a trust or a court-appointed guardian or conservator, which removes many or all of the person's decision making authority. A well-written power of attorney can also help protect against possible financial exploitation and abuse.
A lawyer experienced in estate planning is the most appropriate person to write a power of attorney and give you advice about what is needed in your situation. There are many power of attorney forms available on the Internet but they may be too general for your circumstances, they may not follow the requirements of Missouri law, and they may not protect against financial exploitation and abuse.
You may become physically or mentally unable to communicate your desires for medical care if you have an accident or become ill. Your family and doctors will better understand your preferences if you have expressed them in writing. It is important to remember that you have a constitutional right to refuse any medical treatment, including those that prolong your life. You also have the right to name another person to make health care decisions for you if you lose the ability to make your own decisions.
Advance directives allow you to state exactly what treatments you do or do not want if you are unable to communicate your wishes. A durable power of attorney for health care choices allows you to appoint another person to make health care decisions that you have not specified in a health care choices directive.
- Why is It Better to Have a Will?
- Alternatives to Guardianship
- Power of Attorney
- Durable Power of Attorney
- Advance directives
There are approximately 350 people in Clay County, Missouri under guardianship and conservatorship with the Public Administrator's Office.
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