What Key Terms Should I Be Familiar With When Preparing a Will

Most Wills contain the following provisions depending upon the marital and family status of the person making the Will (Testator):

SIMPLE WILL:” Under a simple will format, a married Testator with children usually provides that the spouse will receive all of the estate, and if not survived by the spouse, then it would be given equally to their children. If there are no children, then provision is usually made for other beneficiaries, such as extended family members and/or charities.

EXECUTOR:” A Testator should name an Executor or Co-Executors to manage and distribute the estate according to the terms of the Will. Ordinarily, a surviving spouse, mature child, other relative, friend or trusted advisor are good choices.

GUARDIAN:” A guardian is a person lawfully invested with the power, and charged with the duty of taking care of the person who is incapable of doing so because of age or other incapacity. A Testator with minor children usually provides that in the event that the other parent predeceases him or her, it is his or her desire that some named person serve as the guardian of the minor child or children. Although this provision is not binding, it is highly persuasive in a proceeding for the appointment of a guardian and should be included in the Will of any Testator with minor children. A guardianship terminates when a child reaches age eighteen (18).

TRUSTEE:” A trustee is a person appointed to manage the financial affairs of one who is legally incapable of doing so because of age or other capacity. The estate or property otherwise passing to the child should be administered by a trustee under the terms of a trust until the child reaches a certain age.

TAX PLANNING:” Where the total assets (including life insurance) exceed a certain amount, steps are often taken to reduce or eliminate any Federal and New Jersey death taxes. By so doing, more of the couple’s estates would be available for distribution to their children or other beneficiaries.

What Is Probate?

It is the legal process for appointing the executor as the legal representative for a decedent’s estate and approving the plan for distributions to the beneficiaries under a will.

How Long Should Probate Take To Complete?

In most states it can be a cumbersome process that could take several weeks, even months. In New Jersey, if you are prepared, the process can be rather quick. However, if you are not prepared or your application is incomplete, it might require several visits which can be time-consuming and inconvenient. For this reason, it might make sense to have a brief meeting with an attorney to confirm that your submission is in order. But do not confuse probate with addressing the administration of the estate.

How Does the Probate Process Differ From Estate Administration?

Once the probate process is completed and the executor has been appointed, now the real work begins! As executor you are instructed to gather the assets of the estate, pay the debts and expenses of the decedent, file tax returns, and distribute the estate to the beneficiaries pursuant to the provisions of the Will. Depending on the assets this can take several months, even years. Be prepared! An attorney experienced in this area of the law could provide valuable assistance, reducing the time and inconvenience involved.

Do I Need a Power of Attorney?

In most cases I believe that this document might be as, or more, important than a Will. Under a Power of Attorney, you appoint an agent to handle your financial affairs in the event that you are disabled or incapacitated and cannot make decisions regarding your investments or pay your bills. Because a disability could last for many years, this document would prove to be very useful.

What Issues Should I Consider When Creating an Effective Estate Plan?

  • Consider using a will to transfer property to children instead of owning property jointly.
  • Ensure your assets pass according to your wishes upon your death.
  • Know your estate’s true value for estate tax purposes.
  • Check changes in the law regarding state death taxes.
  • Maximize income tax benefits at death.
  • Specify your desired funeral arrangements.
  • Review and update your estate plan regularly.

Instruction Directives

In what circumstance can I have life-sustaining treatment withheld or withdrawn?

Your instruction directive can state you want life-sustaining treatment withheld or withdrawn in any of the following situations:  (1) you are permanently unconscious, (2) you are in a terminal condition, (3) the life-sustaining treatment would likely only prolong an imminent death, (4) the life-sustaining treatment would likely be ineffective or (5) you have a serious irreversible condition and the life-sustaining treatment would likely be more harmful than beneficial.

Why is it important to have an instruction directive?

You may become unable to make your own healthcare decisions because of a serious injury, illness or disease.  By having an instruction directive your family and physician will know the situations in which you would want or not want to have life-sustaining treatment.  And by including a statement about your beliefs, values and general preferences for care and treatment, your physician and family will know what you would want in situations that are not specifically covered by your instruction directive.  An instruction directive will also prevent conflicts among your family, physician or other healthcare providers that can occur when a patient’s treatment preferences are unknown.

What is the definition of “life-sustaining treatment”?

Life sustaining treatment shall mean any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increases the expected life span of a patient, including, by way of illustration and not limitation, maintenance of respiration by means of ventilation or otherwise, and alimentation or hydration by means of surgical intubation, intravenous injection, or otherwise.

What is the definition of “permanently unconscious”?

Permanently Unconscious shall mean a medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment, including, without limitation, a persistent vegetative state or irreversible coma.

What is the definition of “terminal condition”?

Terminal condition shall mean the terminal stage of an irreversibly fatal illness, disease or condition.  Generally, a prognosis of a life expectancy of six months or less, with or without the provision of Life-Sustaining Treatment, based upon reasonable medical certainty, shall be deemed a terminal condition.

Proxy Directives

What authority does my healthcare representative have to make decisions for me?

Except for any restrictions you have placed on their authority, your healthcare representative has the right to make all healthcare decisions for you, including the right to refuse medical treatment.  They also have the right to review your medical records and receive from your physician all information about your condition, prognosis and treatment options as is necessary for them to make an informed decision.

Can my healthcare representative make decisions for me if I am still able to make my own decisions?

No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.

Who can I appoint as my healthcare representative?

You can appoint your spouse/domestic partner, parent, adult child, family member, friend, religious/spiritual advisor or any other adult.

Can I appoint more than one person as my primary healthcare representative?

No, but you may appoint a successor healthcare representative to serve in the event that the primary cannot.

Why is it important to have a proxy directive?

You may become unable to make your own healthcare decisions because of a serious injury, illness or disease.  If you cannot make your own healthcare decisions someone will have to make them for you and without a proxy directive your physician will not know who you want that person to be.  Having a proxy directive will help ensure your preferences are respected because only the person you have appointed will be able to make healthcare decisions on your behalf.  Also, having a proxy directive will help prevent conflicts among your family members who may disagree on who should have the authority to make these decisions.  Even if you have an instruction directive, it is important to have a proxy directive because there are many circumstances in which treatment decisions will have to be made that are not covered by your instruction directive.

Is my physician required to get consent from my healthcare representative for treatment?

Yes, your physician is required to obtain informed consent for your treatment (except in emergencies), and must respect their decisions just as if the decisions were coming directly from you.

Who should I appoint as my healthcare representative?

You should choose someone who knows your values, beliefs and preferences well enough to know what treatment decisions you would want them to make for various medical conditions.  The person should be someone with good judgment and who will be a strong advocate on your behalf.  They should also be someone you believe will respect your wishes even if they disagree with them, especially when it comes to your preferences about the use of life-sustaining treatment.