What is a Living Will?

A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician's directive. A living will should not be confused with a living trust, which is a mechanism for holding and distributing a person's assets to avoid probate. It is important to have a living will as it informs your health care providers and your family about your desires for medical treatment in the event you are not able to speak for yourself.

The requirements for a living will vary by state so you may want to have a lawyer prepare your living will. Many lawyers who practice in the area of estate planning include a living will and a health care power of attorney in their package of estate planning documents. If you need to write or update a will or trust, you can take care of your living will at the same time.

Generally, a living will describes certain life prolonging treatments. You, the declarant, indicates which treatments you do or do not want applied to you in the event you either suffer from a terminal illness or are in a permanent vegetative state. A living will does not become effective unless you are incapacitated; until then you'll be able to say what treatments you do or don't want. They usually require a certification by your doctor and another doctor that you are either suffering from a terminal illness or permanently unconscious before they become effective as well. This means that if you suffer a heart attack, for example, but otherwise do not have any terminal illness and are not permanently unconscious, a living will does not have any effect. You would still be resuscitated, even if you had a living will indicating that you don't want life prolonging procedures. A living will is only used when your ultimate recovery is hopeless.

For situations where you are incapacitated and therefore not able to speak for yourself, but your health is not so dire that your living will becomes effective, you should have a health care power of attorney or health care proxy. A health care power of attorney is a legal document that gives someone else the authority to make health care decisions for you in the event you are incapacitated. The person you designate to make health care decisions on your behalf is supposed to consider what you would want, so be sure to talk with them about it. It may be a difficult conversation, but you're asking someone to take on a great burden for you - letting him or her know what you want lessens that burden.

None of these documents will do you any good if no one knows about them. You have to talk with your doctor and the person you designate as your health care proxy. Discuss with your doctor what kinds of end of life medical treatments you want. He or she can help you by answering any questions you have about certain treatments. Once you've decided what it is you do or don't want, make your wishes known to your doctor and your family.

Why Have a Will?

There are probably few subjects in law which are surrounded by more myths and misinformation that the subjects of wills and the distribution of estates. Many people believe that not having a will allows the state to take part of the estate (not true), that having a will automatically reduces taxes (also not true), or that having a will means that a lawyer gets to take a big fee out of the estate (also not true). And, of course, there are the stereotypes of little old ladies writing long wills to direct who gets the silver spoons.

The purpose of this article is to provide a brief explanation of what a will can do, and some practical advice on why a will is needed.

What Happens Without a Will?

If you die with assets in your name, and without a will:

• The division and distribution of your estate is governed by a statute, called an "intestate" law. (The word "intestate" comes from the combination of the Latin suffix "in," meaning "not" or "without," and "testate," meaning "will," so "intestate" means someone who dies without a will.) If you are survived by a spouse and children, your estate is usually divided between your spouse and children. If you have only children (or grandchildren), the estate is divided among your children (and grandchildren). If you have neither spouse, children, nor grandchildren, the estate is distributed to your parents, brothers and sisters, grandparents, aunts and uncles, or cousins, depending on who survives you.
• The person (or persons) who inherits your estate is usually appointed to serve as the administrator of your estate, to collect your assets and settle your estate.
• If you have minor children who inherit from you, a court will appoint a guardian for their estates until they reach the age of eighteen.
• If you have minor children and your husband or wife did not survive you, a court will appoint a guardian for their persons.

These laws do not always cause problems, but there are many situations in which you will want to arrange things differently by your will.

A Will Can Protect Your Husband or Wife

Most people assume that, if a husband or wife dies, everything goes to the survivor of them. That is certainly true of jointly owned property, but in Pennsylvania (and most other states), the surviving husband or wife is entitled to only about one half the individually owned assets of a deceased spouse, the rest of the assets passing to the children. Your husband or wife could therefore be very surprised to find, after your death, that half of your property has passed to your children. (If your children are minors, insult can be added to injury, because the court must appoint a guardian for the property passing to the children, and in Pennsylvania the surviving parent cannot be appointed as the guardian. That means that the children get one half of your property, your husband or wife is still responsible for raising them, but your husband or wife has no control over their half of your property.)

If you are married and want your husband or wife to own everything after your death, it is usually a good idea to have a will that says that and avoid any possible confusion or surprise.

A Will Can Appoint Guardians for Your Children

If you have minor children, you have the right to appoint the guardians who will take care of your children upon the deaths of you and your husband or wife. (Upon the death of only one parent, the surviving parent obviously continues as the natural guardian, so the problem only arises if both parents die in a common accident, or if one parent has already died.)

A Will Can Appoint Trustees for Children

If you have minor children, you also have the right to appoint a guardian of their estates. (A guardian of the estate invests and takes care of the property that a minor inherits, while a guardian of the person takes the place of the parent in caring for the minor.) However, it is usually better to appoint a trustee and put specific directions in the will for applying the child's inheritance for support and education, and specific directions for the age at which the child may receive the balance of the inheritance outright, free of trust.

If you fail to write a will and your minor children inherit from you, a court will appoint a guardian for them (and the guardian will probably not be someone you would choose), and your children will receive their inheritances at the age of eighteen. As noted above, this situation can be especially upsetting when only one parent dies and property passes to the children by intestacy, because a court in Pennsylvania cannot appoint the surviving parent as the guardian of the estate of the children.

A Will Can Appoint Executors

Although the job of an executor (or administrator) of an estate is usually not as important as many people think (it's really just a matter of finding the assets, paying the debts, paying the taxes, and distributing whatever is left), there are sometimes disputes about who should be the administrator when there is no will, or there are disputes among the administrators if more than one is appointed. Having a will that names an executor can eliminate these kinds of problems.

A Will Can Save Taxes

Having a will does not, in itself, save any taxes. If your estate would pass to your children without a will, and you write a will leaving everything to your children, the death taxes (state inheritance tax and federal estate tax) will be exactly the same with or without the will.

It is possible for a married couple whose combined estates are more than the federal estate tax "applicable exclusion amount" (which is $675,000 in 2000 and which is scheduled to increase in stages to $1,000,000 in the year 2006) to save federal estate tax through special trust provisions in a will or revocable trust. For example, if a husband and wife have combined estates of $1,350,000, and wills by which they both leave everything to the survivor of them, there will be no federal estate tax upon the first death (because of the federal estate tax marital deduction), but the $1,350,000 estate of the survivor will result in state and federal death taxes of $270,750 upon the death of the survivor. However, if the first of the couple to die leaves $675,000 in trust for the survivor, there is no federal estate tax, because of the federal estate tax "unified credit." The survivor would then have an estate of $675,000 and a trust of $675,000. Upon the death of the survivor, the $675,000 trust is not subject to tax and the $675,000 estate results in no tax because of the unified credit. Therefore, adding the trust provisions to the will of the first spouse to die eliminated the taxes upon the death of the surviving spouse, saving $270,750 in death taxes.

If you want to leave any part of your assets to charity, you obviously need a will. If you want to benefit both family members and charity, there may be ways in which you can reduce the taxes for your family through special charitable trust arrangements. (Unfortunately, these methods are too complicated to describe here.)

When Does a Will Not Help?

There are some situations in which having a will won't necessarily change anything.

• A will only controls the assets in your name that are part of your estate, and there are many types of assets which are not part of your estate and do not pass under a will. For example, life insurance, annuities, retirement benefits, and individual retirement accounts are usually payable to a named beneficiary, so they are not part of the estate and are not controlled by the will. Also, property owned by a husband and wife as tenants by the entireties, or by one or more persons as joint tenants with rights of survivorship, automatically pass to the surviving owner, regardless of what is said in a will. If all of your assets are jointly owned with your husband or wife, life insurance, and retirement benefits, a will may not be needed if your husband or wife survives you, but may be needed if you both die together.
• By a will, you can also make gifts of your body for transplants or research, or provide instructions on where and how you wish to be buried. However, these are poor reasons to have a will. In most cases, no one looks at the will until after the funeral and burial, so it is quite likely that your instructions for the disposition of your body will be found too late to do anything about them.