My father, who died in early 2008, knew just about everything. He could remodel bathrooms, change diapers, rewire electrical outlets, cook a mean breakfast, build fences and fix lawn mowers. As the plumbing inspector for the city of Wausau for more than 30 years, he knew just about every contractor, city official, attorney and business owner in town. The one thing he didn’t know was how to plan for the future, especially when it came to his final arrangements.
When he was diagnosed with non-Hodgkins lymphoma for the third time, in late 2007, he thought he had all the time in the world to make his final wishes known, even at age 78. He didn’t.
In his final few months, my father fretted constantly over what he called “unfinished business.” He worried that he hadn’t spelled out his wishes and wanted desperately to change that. It caused him considerable stress and a lot of lost sleep. And he didn’t want to ask anyone for advice.
In the end, we were lucky. A local judge who lived in the neighborhood was kind enough to come to the house on Christmas Eve to help facilitate a will, setting my father’s mind at ease. He died less than three weeks later.
Settling his estate still was somewhat messy, only because he didn’t have enough time to examine all the details of his accounts and property. Untangling such things while grieving was truly difficult for us.
Preparing for what happens at the end of life is one of the most important gifts you can give to your family. The right will can protect your assets while you’re alive, and ensure your loved ones are cared for after your gone. And having the right power of attorney in place ensures your wishes are followed to the letter.
For estate planning purposes, there are two main types of powers of attorney, and it’s important to know the difference, says Aric Burch, an attorney with Ruder Ware in Wausau. One deals with health, the other covers your finances.
A health care power of attorney designates an “agent” who can speak with a doctor on your behalf and make decisions if you’re no longer able to do so yourself—for example, if nursing home care is needed, or to decide on specific treatment options.
Some people avoid designating an agent because they fear losing control over medical decisions. Those fears are unfounded, says Burch, because the agent in a health care POA doesn’t become active until you can no longer make competent decisions. “That’s something a doctor determines,” Burch says. “Only then does it spring into action.”
The second type, called a durable power of attorney, is all about financial matters. This document gives someone permission to handle your financial life: everything from banking to investments to taxes.
In addition to POA, wills and trusts are also a must, Burch says, to protect assets and ensure property is transferred smoothly. “What it comes down to, though, is which one you need,” he says. A trust is generally preferable for more complicated and/or considerable estates.
Slightly more than half of American adults who die each year do so without a will or trust, according to the American Bar Association. Even fewer people have an established power of attorney.
Anyone at least 18 years old and mentally competent can make a will in Wisconsin, Burch says. The will itself doesn’t need to be notarized. Two witnesses can sign a notarized affidavit attesting to the fact that they signed the will freely. The affidavit can be used in court years later if the will is contested, even if the witnesses have died or can’t be found, Burch says.
Your estate, which is all of your tangible property, passes through probate court if you have a will, to establish its validity. Life insurance, IRAs and bank accounts with a “payable on death” designation don’t go through probate because a beneficiary has already been appointed.
With a trust, your estate doesn’t go through probate at all, because the trustee you appoint becomes the owner of the estate upon your death. The trustee then handles the property, and distributes it according to the terms of the trust.
If you don’t have a will or a trust, the state decides what to do. Basically, your assets pass to your spouse, though it can be a more complicated if you have children who aren’t your spouse’s. In that case, your child could potentially share those assets, Burch says.
It’s all pretty complicated. The important thing to remember is not to procrastinate, and ask for help from a professional.
“People don’t deal with this sort of thing every day,” Burch says. “But if you do nothing, your family can be faced with a plan you didn’t want, or worse, no plan at all.”