This Holiday, Give Thanks to Your Parents If They Have Taken Care of Their Affairs

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By Gary M. Landau, Esq.

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This Holiday, Give Thanks to Your Parents If They Have Taken Care of Their Affairs | Coral Springs, FL | Call (954) 979-6566

And if they haven’t yet made a will, living will, and other end-of-life decisions, Thanksgiving is the perfect time to discuss this

As your family gathers around the holiday table this Thanksgiving, give your parents a big thank-you if they have taken care of their late-in-life affairs. No matter your parents’ health or their age, anyone who ponders difficult end-of-life decisions is giving a huge gift to their family and deserves your thanks.

Why? Because in all my years as a probate attorney, I have seen how heartbreaking it is for someone to try to discern what their parent may have wanted if the unthinkable happens: What do they want their final days to be like? Do they want extraordinary measures taken to save their life? And once they pass away, how would they have wanted their assets to be distributed?

It’s understandable that many people don’t want to think about these things; the idea of death is fraught with emotion. But I have seen the anguish in a child’s eyes—even if that child is 50 or 60 or even 70 years old—when these decisions about their parent fall onto them.

That’s why these are crucial topics to discuss with any living parent and to make sure they follow through with actions.

If your parents have not yet created the legal documents to execute their wishes, please share with them during the holidays why this is so important to you.

Your Parents Should Make Their Own End-of-Life Decisions

Imagine if your parent were in a serious accident or had a sudden stroke, heart attack, or severe infection. They could be lying unconscious in a hospital, hooked up to life-supporting machines. Would they want to remain indefinitely in this state, or would they want to be removed from the machines that are breathing or beating their heart for them? Would you want to have to decide this for them? After all, each person has their own unique thoughts about this situation, based on their personal desires, religion, and life experiences.

What’s more, perhaps your parent has a vision in their own mind for how they want their final days to transpire even if no life-saving interventions are involved, but you don’t know what it is. And are you certain that the way the courts would distribute their assets after their death if they have no will is consistent with what they would desire?

Ensuring that your parent’s wishes are clarified and honored is done through several legal documents that can easily be created by an attorney.

Encourage Them to Create a Living Will

If your parents do not yet have a Living Will, this is the document that will instruct their physician whether they do or do not want to be kept alive in hopeless circumstances. (And, I’ll also point out, no matter how old you are, you should make your own wishes known for yourself through your own living will, as well.)

A living will (not to be confused with a general Will–see my Blog on the misconceptions, although they need a will too—see below) communicates whether your parents want aggressive end-of-life support in this type of situation if they are unable to communicate their desires.

Do note that they can always change their mind and redo this document if they later decide differently.

They Also Need a Healthcare Power of Attorney

Doctors typically turn to a spouse or other close relative to make important medical decisions should a person become incapacitated. Should the person have risky surgery? Go on powerful drugs?

Typically, the default medical decision-maker is the spouse. But say they don’t have a spouse. Or what if one of your parents is suffering from mild dementia. Perhaps that person is not suited to make these kinds of decisions for the other.

A healthcare power of attorney officially appoints a specific person chosen for that role.

A Healthcare Power of Attorney specifically names the person given authority to make these decisions. It should be someone who keeps cool under pressure because many decisions are made during a health crisis.

What About the Emotional Aspects of Their Final Days?

My firm developed a free document, My Last Emotional Wishes, to help people indicate how they want their final months, weeks, and days to go from a physical and emotional standpoint. This is not a legal document, but one that helps people think about what’s important to them; it is also a great way to facilitate dialogue between loved ones if you fill it out together.

This free, 4-page document allows everyone—whether currently diagnosed with a life-limiting disease or simply planning for the distant future—to record their end-of-life emotional desires, taking the guesswork away from struggling family and friends. It was created in consultation with hospice professionals and other experts.

Topics include the people, items, music, and/or prayers you’d want to be surrounded by in your final days; whether you’d want to be free of all pain near the end or prefer to tolerate discomfort if that means you can remain conscious; how you most want to be remembered; where you’d ideally like to be when you pass on; the mood you’d prefer at your funeral/memorial service; and more.

The four-page PDF form is easily downloadable from our firm’s website, GaryLandau.com (Scroll to the bottom of the page for the download).

Print it out and ask your parents to fill out the form and store it alongside other important papers in their homes. Because this is not a legal firm, but rather a reflection of a person’s desires, there’s no need to have your signature witnessed or notarized.

Be Sure Their Will Is Up to Date

Many people draft their Will one time—perhaps when they had children or got divorced or remarried. Then they stash it away and forget about it. Your parents may have done the same

But a will is a crucial document, describing what heirs will get how much of the person’s assets (and who will be the guardian for the children if they are underage).

If your parents haven’t revisited their will in several years, encourage them to do so. And if they have no will at all, urge them to draft one with an experienced attorney. (I don’t recommend anyone create this document on their own; I see many mistakes in do-it-yourself wills that cannot be corrected after the person has died.)

You’ll especially want to encourage your parents to revamp their will if they have recently become a widow, gotten remarried, or altered their relationship with their personal representative or any of their heirs.

Ask your parents to tell you where their will is stored (not in a bank vault, which can be hard for others to access in a crisis). Too often after a death grown children cannot find it. Many attorneys also store original wills in a vault in their offices.

Consider a Durable Power of Attorney, Too

If you notice during the holidays that your parents are losing their ability to handle their financial affairs, they may need a Durable Power of Attorney. This document gives you or someone else the power to make financial decisions for them, from paying their bills to selling their home.

Before 2011, attorneys could create a power of attorney that was “springing”–that is, that could be used only if the person who signed it became incapacitated. Since then, however, powers of attorney are deemed to be in effect as soon as they are created, so they’ll want to carefully consider all the ramifications before deciding to create this document.

Probate Attorney Coral Springs

Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you 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 not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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