4 Legal Documents You NEED

Some of you know my story…met Dave in 1989, in 1995 we bought a homestead, moved and were married in the Appy Mtns. We spent the next sixteen years restoring the farm, outbuildings, house and, along the way, turned a solid friendship into a great marriage.  In 2010, two weeks out from a trip to Paris where we would board the EuroStar to backpack around Europe, Dave became sick. (As an aside, he asked me, “Do you think we’re too old to backpack around Europe?” I replied, “Heck yes, but next year we’ll be a year older and it’ll be harder. Let’s go now!”) He was diagnosed with cancer and fourteen months later he was buried in Hollywood Cemetery. If you’re interested in more of that story search for Dear Dave in the blog search box.

A few years into the marriage I told Dave, “I want a will and trust made for both of us.” He was dumbfounded. “WHY?”

When I told him my reason, he scoffed. “That cannot be true!” but it was and verified with several of the ladies in question (who found it amusing). Where we lived, ladies of a certain age (old enough to have blue tints) would meet 10:00 Tuesday mornings to play bridge, then have lunch. After lunch, they would all pile into a couple of cars and drive to the county courthouse where they would descend on the records room to look up the probated wills of men who’d died the week prior. The purpose was to see how well off the widows were, if anything was left to anyone else (the church, the Party (either) or (gasp!) mistresses. I wanted privacy and was under the impression a Living Trust would provide privacy.

(Before the nitty gritty…something needs mentioning. A friend who worked for a lawyer called one morning to ask me, “Have you been to town today?” Puzzled, I replied, “No, why?” She said slowly, “I had to come to the Records Room and there was no one here…not in the room and I passed no one leaving the room. When I sat down at the first computer and moved the mouse, Dave’s will came up.” I started laughing; nothing ever changes in a small town.)

Dave talked with a lawyer acquaintance, an appointment was made, both Last Will and Testament and Revocable Living Trusts were duly written, signed, notarized and brought home. With those documents, also obtained were Medical Directive and Power of Attorney and, in Virginia, all may be written by the interested party. It’s best to have a lawyer draw up the documents but, if finances prevent this, you should at least perform these tasks for you and your family. Let me assure you…I am not a lawyer and you should do your own research but this information is to (a) tell you what you need and (b) give you information to get you started with your own research to ask pertinent questions. My information is  for the Commonwealth of Virginia; it may be different where you live so, please, do your research.

All lawyers are NOT equal! I found this out the hard way. The first will and trust we had made seemed, to me, to be more than a trifle pat. As in, cut and paste and I was never quite comfortable with the legality of either document. When I relocated to southside Virginia, I visited the local extension agent and it was there I found a brochure on free insurance, Last Will and Testament, Living Trust and establishing a farm seminars. I attended and the lawyer in question said he would give a free 2.5 hour meeting with anyone who might be interested in having their will and trust made. When I went for my appointment, he told me his only specialty were Last Will and Testament and Living Trusts and he took annual re-certification classes to stay up to date in several states. Suffice it to say, he was not impressed with the “quality” of my documents and re-wrote them, bringing them up to date by leaving out superfluous material, adding new information, etc. His fee included an evaluation in three years to make necessary changes and I consider the check I wrote him to be of greater value than the first lawyer.

If you are of legal age, you need a (1) Last Will and Testament and, in Virginia, a holographic instrument is legal but not in every state. A holographic document is handwritten, signed and dated but, usually, does not need to be witnessed nor notarized, however, having it notarized provides additional measures of safety as does having your signature witnessed by two disinterested people. There are several websites that provide free documents which may be printed, filled in, dated, signed, witnessed and are better than holographic wills.

Other reasons to have a Last Will and Testament: you have minor children and want to provide for them after your death, you have bequests (money or tangible property) for certain individuals and the best reason…should you die intestate, meaning without a will, the state will take approximately the top 1/3 of your estate or value thereof and will determine who gets what of what’s left over. In Virginia, the spouse receives 1/3 while any children receive 2/3. While it might not happen, it’s perfectly legal for social services to step in, take your minor children and place them in foster care until “things can be sorted out” in which case the state may also determine payment for said children’s upkeep.

You want to read that last sentence again? I’ll wait.

Your will should name your executor (male) or executrix (female), provide a guardian or guardians for your minor children and should Pour Over into your Living Trust. You may provide compensation for your Executor or Executrix but it’s not legally required. My Will is very simple..the bare basics because my Trust is where the meat and potatoes are located.

One big change I made to the standard Last Will and Testament was make it a Christian Last Will and Testament. This was very important to me and, while my lawyer raised his eyebrows, it was, and remains, non-negotiable. He wasn’t against it, it was more he wasn’t acquainted with the concept and found it intriguing. My Will begins with the usual, “…being of sound mind and body…” and then states Scripture from The Holy Bible that’s quite meaningful to me. I want my loved ones to know I died as I lived, believing in Jesus Christ as Lord and Savior with the verses He gave me several times as assurance He was with me. I also want them to know absent in the body, present with the Lord and I’ve joined that great cloud of witnesses, waiting for them to follow. (If you’re interested in learning more about Christian Last Will and Testament, click here  for a wealth of information; no affiliation but be warned…the writer takes no prisoners! He says nothing should be given to the “lawless”. Frankly, I agree.)

If you have designated certain beneficiaries on 401.k plans, life insurance, retirement accounts, annuities and the like, they remain in place. In other words, the will does not override the beneficiary designations unless you make those changes.

At your death, if you’ve not written a will, your partner (one not in a legal/civil marriage) doesn’t receive anything.

Essentially, a will that ends with Pour Over into a Living Trust means you place your worldly possessions into a Living Trust which then owns everything. This is also a measure of safety from lawsuits.

A (2) Revocable Living Trust keeps the details of your estate private and is what many people use to keep straying eyes away. After all, your business is your business! Revocable means, during your lifetime, you can make changes  as you want or as circumstances decree, whereas a Non Revocable Living Trust is “set in stone”. Yes, you want a Revocable Living Trust and need to name a Trustee or Trustees (people working together to ensure your directives are carried out).  A trust is where you provide for child guardianship, distribution of assets, monetary donations to your church or favorite charity, forgive debts, bequeath property (family heirlooms, vehicles, equipment, furniture, jewelry, money, guns, etc.), provide for any pets or other items pertinent to your situation.

A (3) Medical Directive may also be called an advance health care directive and describes the kind of care you want should you not be able to make such a decision later. You could include DNR, Do Not Resuscitate, if you want to die naturally without being “brought back” and put on life support. You could name someone to make such decisions for you but is there anyone you want to bear the weight of that responsibility? If you do include a DNR, you must know family or doctors may not override your decision; it’s permanent. Your Medical Directives should be discussed with family members and your doctor to ensure everyone is informed of your wishes. Any decisions you make now may be changed by you at a later date.

(4) Power of Attorney is where you name someone to act on your behalf such as make financial decisions, give financial bequests, write checks, close bank accounts, make health care decisions, decide where someone might live, etc. A Limited Power of Attorney gives a specified time period and/or specified powers such as sell property while a General Power of Attorney gives someone all the rights and powers you hold over yourself. A Springing Power of Attorney is when someone becomes incapacitated.

I am not a lawyer and what I know has been learned the hard way; Dave has been dead more than eight years and I’m still trying to settle his estate. It’s amazing how difficult even a simple will and trust can be and how much it involves but it would be an absolute nightmare if those documents weren’t in place. Check the law and requirements for where you live and get started on these documents.

If you’ve found this information helpful, please share and if you have questions, I’ll do my best to answer.

Next post: Insurance ~ why have it, how much should we have, what kind do we need,  how to find a reputable agent and other questions answered.