Questions About Wills, Living Wills and Powers of
Attorney by: Sheri
R. Abrams, Attorney at Law
Frequently Asked Questions About Wills, Living Wills and
Powers of Attorney
WHAT DOES A WILL DO?
The simplest way to ensure that your funds, property and
personal effects will be distributed after your death
according to your wishes is to prepare a will. A will is
a legal document designating the transfer of your
property and assets after you die. Usually, wills can be
written by any person over the age of 18 who is mentally
capable, commonly stated as "being of sound mind and
WHO NEEDS A WILL?
Although wills are simple to create, about half of all
Americans die without one (or Intestate). Without a will
to indicate your wishes, the court steps in and
distributes your property according to the laws of your
state. Wills are not just for the rich; the amount of
property you have is irrelevant. A will ensures that what
assets you do have will be given to family members or
other beneficiaries you designate. If you have no
apparent heirs and die without a will, it's even possible
the state may claim your estate.
Having a will is especially important if you have young
children because it gives you the opportunity to
designate a guardian for them in the event of your death.
Without a will, the court will appoint a guardian for
your children who may be someone you do not even know.
WHAT ARE THE ELEMENTS OF A WILL?
What you generally need to make a will:
1) Your name and place of residence;
2) Names and addresses of spouse, children and other
beneficiaries, such as charities or friends;
3) Alternate beneficiaries, in the event a beneficiary
dies before you do;
4) Name and address of an Executor/ Executrix to manage
5) Name and address of an alternative Executor/Executrix,
in the event your first choice is unable or unwilling to
6) Name and address of a guardian for your minor
7) Name and address of an alternative guardian, in the
event your first choice is unable or unwilling to act;
8) The age you wish your minor children to have control
of their inheritance;
9) Any burial requests you may have (cremation, where you
want to be buried, etc.);
10) Your signature;
11) Two Witnesses' signatures; and
Two of the most important items included in your will are
naming a guardian for minor children and naming an
WHAT IS A GUARDIAN?
In most cases, a surviving parent assumes the role of
sole guardian. However, it's important to name a guardian
for minor children in your will in case neither you nor
your spouse is able and willing to act. The guardian you
choose should be over 18 and willing to assume the
responsibility. Talk to the person ahead of time about
what you are asking. You can name a couple as
co-guardians, but that may not be advisable. It's always
possible the guardians may choose to go their separate
ways at some later date, and, if so, a custody battle
could ensue. If you do not name a guardian to care for
your children, a judge will appoint one, and it may not
be someone you would have chosen.
WHAT IS A EXECUTOR/EXECUTRIX AND WHAT DO THEY DO?
An Executor/Executrix is the person who oversees the
distribution of your assets in accordance with your will.
Most people choose their spouse, an adult child, a
relative, or a friend to fulfill this duty.
If no Executor/Executrix is named in a will, a Probate
Judge will appoint one. Probate refers to the legal
procedure for the orderly distribution of property in a
person's estate. The Executor/Executrix files the will in
probate court, where a Judge decides if the will is
valid. If it is found to be valid, assets are distributed
according to the will. If the will is found to be
invalid, assets are distributed in accordance with state
Responsibilities usually undertaken by an
--Paying valid creditors;
--Notifying Social Security and other agencies and
companies of your death;
--Canceling credit cards, magazine subscriptions, etc.;
--Distributing assets according to the will.
WHAT ABOUT UPDATING MY WILL?
You'll probably need to update your will several times
during the course of your life. For example, a change in
marital status, the birth of a child or a move to a new
state should all prompt a review of your will. You can
update your will by amending it by way of a Codicil or by
drawing up a new one. Generally, people choose to issue a
new will that supersedes the old document. Be sure to
destroy the old will after you sign a new one.
WHAT ABOUT ESTATE TAXES?
The property included in your will may be subject to
taxation. In planning your will, take into account the
---Federal estate taxes will generally be due if the net
taxable estate is worth more than $1,000,000. This amount
is scheduled to gradually increase from $1,000,000 in
2002/2003 to $3,500,000 in 2009 so that it will
eventually shield $3,500,000 in gift or estate transfers
from tax per taxpayer. Estates in excess of the exempt
amount can be taxed at a rate from 37% to 50% (the top
percentage is scheduled to gradually decrease to 45% in
2009). Also, note that these estate tax changes are
scheduled to be repealed in 2010. If not extended, the
tax law will revert to the estate and gift tax provisions
in affect in 2001. Consult a tax or financial
professional to determine a plan that is right for you
and your family.
---State death or inheritance taxes
---Federal income taxes
---State income taxes
You may be able to minimize your estate tax by
establishing a trust or giving gifts during your
lifetime. You can also cover the cost of estate taxes by
purchasing a life insurance policy intended to pay taxes.
Talk to your life insurance agent to find out more about
how this works.
WHERE SHOULD I KEEP MY WILL?
Once your will is written, store it in a safe place that
is accessible to others after your death. I suggest that
you keep it in a fire proof box that you can purchase at
any office supply store. I do not suggest that you keep
your will in a safe deposit box because many states will
seal your safe deposit box upon your death. Make sure a
close friend or relative knows where to find your will.
WHAT IS A LIVING WILL?
A living will is not a part of your will. It is a
separate document that lets your family members know what
type of care you do or don't want to receive should you
become terminally ill or permanently unconscious. It
becomes effective only when you cannot express your
wishes yourself. Discuss your wishes as reflected in your
living will with family members, and be sure all your
doctors have a signed copy.
WHAT IS A POWER OF ATTORNEY FOR HEALTH CARE
(HEALTH CARE PROXY)?
A power of attorney for health care (health care proxy)
is not a part of your will. It is a separate document
that authorizes someone you name to act in accordance
with your medical intentions. It becomes effective only
when you cannot express your wishes yourself. You should
make sure that all your doctors have a signed copy.
WHAT IS A FINANCIAL DURABLE POWER OF ATTORNEY?
A financial durable power of attorney is not a part of
your will. It is a separate document that authorizes
someone you name to act in accordance with your financial
intentions. It becomes effective only when you cannot
express your wishes yourself. You should make sure that
all your financial professionals (stockbrokers,
accountants, financial planners) and banks have a signed
The end of your life is something you probably don't want
to dwell on, but thinking about what will happen to your
loved ones and your assets and personal possessions is
important. Making sure you've done all you can to make
their lives easier will give you peace of mind. And once
your will is drafted, you won't have to think about it
again unless something significant in your life changes.
About The Author
Sheri R. Abrams is an Attorney in Fairfax, VA. Her
practice is limited to the areas of Social Security
Disability Law and the preparation of wills, living
wills, health and financial powers of attorney. Ms.
Abrams is a graduate of Boston University's School of
Management and the George Washington University School of
Law. Ms. Abrams is rated "AV" by
Martindale-Hubbell. More information can be found at