Page Reviewed / Updated - Sep. 2017
This article focuses on how to create a Last Will and Testament in the context of the elderly and aging care and why one would want to do so. It is written for aging individuals, their spouses, adult children, and other family members who are concerned about arranging their loved one's legal affairs.
What a will does and cannot do? A will is a binding, legal document that controls the distribution of one's property, also referred to as one’s estate, upon their death. At this time, their property is divided according to their wishes. Only property that is solely in the name of the individual writing the will can be included in the will. A will cannot designate the distribution of jointly owned property, life insurance, retirement benefits or other assets in trusts.
Who is involved in the creation of a will? There are multiple parties that can play a role in the creation and execution of a will. Some of these are vital during the writing process, others are optional and others only play a role after the person dies. Each party has an official legal title, which for most the part, is not at all descriptive of the role they play in the process. Here we define these parties, their roles and attempt to demystify the various legal names by which they are referred.
1. Testator - the testator is the individual whose property will be distributed by the will. If one thinks of "my Mom's will", then their Mom is the testator. When the testator passes, they are referred to as the decedent.
2. Executor - the executor is the person responsible for managing the will after the individual dies. The executor “executes” the testator’s wishes regarding their estate, pays the finals bills, and distributes the assets. Any adult can be appointed as the executor of a will. However it is best to choose someone who will likely outlive the individual whose will it is. In the case of an aging couple, it is advisable to appoint an adult child as executor instead of one's spouse as they will likely live longer. Accountants and lawyers can also be chosen as executors, but these individuals will charge for their service. It is typical, but not required to notify the executor of their role when creating a will.
3. Successor Executor –closely related to the executor, the successor executor, also referred to as a successor representative, can be thought of as a backup quarterback. They take over if the executor will not or cannot assume their duties. Successor executors should be, but are not required to be, notified of their role in the will.
4. Beneficiaries - these are the individuals to whom property is distributed in the will. It is not necessary, nor required, to involve the beneficiaries when creating the will.
5. Witnesses / Notary Public - depending on one's state of residence, either a witness or a notary public is needed to sign the will once it has been created.
6. Lawyer - legal consul is not required to create a will. Depending on the complexity of the will and amount of assets to be distributed, it may be beneficial to retain a lawyer. However, it is not required by law to do so.
7. Medical Professional - in rare cases, it might be necessary to have a doctor certify that the individual writing the will is competent to do so. This is considerably more common when elderly individuals are creating their wills and even recommended. Especially when the individual writing the will has Alzheimer's or dementia and has alternating periods of normal and confused cognitive behavior.
8. Probate Court - probate court is the branch of one's local court that deals with wills. However, they only do so after the individual has died. One's probate court is determined by their last official place of residence prior to passing. In the case of the elderly living in assisted living or in a nursing home, they would use the local court of the address of the nursing home or assisted living community.
Who should create a will? Anyone who has any assets at all, however small should create a will. This includes elderly individuals on Medicaid even though they have very limited assets and income. Dying without a will is called intestate. The assets of an intestate individual are distributed by the courts according to state laws. Generally they will be distributed among the surviving spouses or children. However, not before the state has taken a portion for administrative purposes. Therefore, it is worthwhile to create a will simply to minimize the portion of one's estate that the courts take in fees.
When to create a will? Is it ever too late? For aging individuals who do not have a will, the sooner they create one, the better. While one can write a will at any age, they must be considered to have basic competency for the will to be valid. Basic competency is defined as being aware of what you are signing and being aware of what would otherwise happen to your assets should you have no will. There can be considerable questions regarding what constitutes "sound mind and body". For elderly individuals with failing cognitive skills, it may be beneficial to have a doctor's statement at the time of the will writing. This confirms the individual is competent (and the will is therefore valid).
Elderly individuals should think closely about where or with whom they store their wills. The important thing is not necessarily where you store it, but who knows where you have stored it. Also, being able to access the will easily should one wish to make any changes is beneficial. (A change to a will is legally called a codicil).
Safety deposit boxes are the most common place to store wills. Other options include storing it with an attorney or with a county clerk, although both of these options may charge for the service. Another, perhaps less ideal option, is to distribute the will to family members.
Wills can be written without assistance and without a fee. However, depending on complexity, one may wish to seek help. There are many websites that offer assistance and only charge a small fee. These sites usually charge less than $100. Using an attorney greatly decreases the chance of making an error, and therefore, having a will declared invalid. One should expect to pay an attorney between $250 and $1,000 for their assistance. Finally, state bar associations can usually make referrals to specific attorneys or organizations that provide free (pro bono) services.