Wills and POAs

Youdon'tsay · July 21

I fear this will turn into a huge discussion as things on cc often do, but here goes: Dh and I are finally getting around to doing a will. I know, I know, but better late than never. We aren't rich, don't have tons of complicated finances. Do we need anything besides a will and POA/medical POA from a lawyer?

Also, we have asked our two sons (currently 24 and 27) if they're OK with being executor and/or having POA. They both are good with it, with ds2 having a preference for the POAs. Any reason not to split up these duties and let older ds be the executor of the will and younger ds do the POAs? TIA

momofsenior1 · July 21

In terms of your medical POA, appoint the child who is most likely to following your wishes. Speaking from experience, it's not always a gimme.

There is no reason why your will needs to be complicated.

Youdon'tsay · July 21

I think ds2 will follow our wishes and be less conflicted about it than ds1, so I think we're good. Also, I would expect to put DNRs in place and such so that there aren't so many decisions to be made.

CountingDown · July 21

@Youdon'tsay you are not alone in this. It's a real sore spot for me, esp since I just found out that intestate distributions do not automatically go 100% to the spouse. That said, I think my sons would sign it all to me, given everything, but still!
I would also be inclined to have one as POA, one as executor, just because each guy has specific strengths that would fit a particular role.

bluebayou · July 21

one thing to consider is setting up your brokerage/investment/bank accounts, including IRA's, as payable upon death (PoD) or transfer upon death ToD. That way the assets go immediately to your sons (50:50?), or who ever you designate, automatically upon presentation of a death cert.

rickle1 · July 21

^ if you do this, the only things that potentially get held up in probate are RE (like your house) and personal possessions, but at least all the financial accounts can be settled right away. If they are currently set up with each spouse as beneficiary, make the kids contingent beneficiaries in the event of primary passing prior to account owner. Also make sure your life insurance and annuity contracts reflect that as well. You could always put the house in a living trust which is a pretty simple scenario.

CT1417 · July 21

I think it will be easier to have one son as POA and one as executor. Co-executor results in complications requiring both signatures.

Agree about confirming beneficiary and contingent beneficiaries on all accounts now.

artloversplus · July 21

If you were to spend the money setup an will and other poas, you mind as well to open a living trust and move a lot of valuables into it. Over here in CA, the competition for clients are fierce. I just throw out some flyers from lawyers advertising living trust and all the trimmings for $499-600, with unlimited updates. What they really after is the fees they charge after one or both setters dies. Mom spends 1000's after dad's passing and we spends 1000s after mom's passing.

bookworm · July 21

My son is first in both categories, but my lawyer is #2, and my physician is #2 as medical POA. In both cases, these are close friends. If my son is working hard and living far away, he can turn over the tasks to these people. He’s known them most of his life.

Youdon'tsay · July 21

@artloversplus can you explain? I'm confused. It sounds like you are saying open a living trust and then that they are a ripoff.

twoinanddone · July 21

I would think you'd want your spouse was the Pay on Death of all accounts, and also to be the decision maker on a medical power of attorney. Your sons would be secondary. At some point, you or spouse will die, and it is common to do that one at a time. I'd list the spouse as primary and then one son as secondary for medical POA and I'd list the one who is more likely to be around, at the hospital, able to contact the doctors.

When the spouse dies, then you can change the beneficiaries and POAs as one of the sons.

rockymtnhigh2 · July 21

I was executor listed with my brother when my mother died. He signed a paper to release his duties so only I would do it, so both of us did not have to sign papers.
We had been both listed as POA’s and medical POA’s when my mother was alive. In that case either of us could have used it for medical or financial decisions. We split the work but sometimes we stepped in for each other.
In our will we have both D’s as executors.

greenwitch · July 21

We just signed a new will and are working on beneficiary forms. What we are doing with those is leaving spouse as primary beneficiary, and the secondary beneficiary is not the surviving children, but a trust set up for their benefit. That way, if H and I die together, or if the second one dies without updating things, that trust will go into effect. Our children are in their 20's and they would get part of their trust at age 30 and the rest at 35.

The benefit is that you can set up the trust terms as you like, and everything you put into that trust obeys those terms without having to be individually stipulated. For example, what if you leave everything equally to your 3 children but one of your children dies before the latter of you and your spouse? What if that child has children of their own? We wouldn't want those potential future grandchildren left out and as of now, they can't be stipulated on an individual account as a beneficiary because they're not born yet. They can be stipulated on the trust as "benefits convey to surviving child of X".

Since people tend to update wills so infrequently we wanted to cover that base. On those beneficiary forms they have the primary beneficiary as spouse and for the secondary or contingent beneficiary I wrote "see attachment" and the attachment mentions "trustee of trust under the last will and testament of Jane A. Doe fbo (for the benefit of) her children". The lawyer's office printed out a different one for each account.

This kind of stuff makes my head swim so I will update if we run into any problems.

We listed all of our children as POA and medical POA. Decisions sometimes need to be made quickly and if someone is off the grid, I want their sibling to be available.

artloversplus · July 22

@Youdon'tsay
Sorry about the confusion. I did not infer any wrong doing.

I was just saying normally if you have the lawyer create a living trust, that includes the will and POAs, they might charge you the same amount(or close to it) if you only want the will and POAs.

In the 80's we did have a lawyer in NJ write a will and POAs, it costed us less as we recently created the living trust and updated our will and POAs in CA.

Youdon'tsay · July 22

Yeah, dh and I will put each other first.

Gotcha, artlovers I have been thinking about a trust. I really need to read up on them. My dad's will stipulates some of the things greenwitch mentions in a trust, such as grandkids take my share if I die before my dad, for instance. I am unclear that a trust is needed for that, but I'll read up. I am hoping this is the first and last will (or whatever) is needed, though that may be wishful thinking.

Hoggirl · July 22

@Youdon'tsay - no, you don’t need a trust to deal with the issue of your predeceasing your parent. “Per stirpes” language is usually employed to achieve your portion going to your issue.

The main benefit of a trust is avoiding probate. As others have said, a lot of that can be avoided with PODs. But, those alone may not be enough. The value of the estate determines whether probate is necessary, and this will vary by state.

And, yes, I agree with you that this likely shouldn’t be your last time to do your will. Fil died last summer and had not updated his will (also the only one he ever executed) from 1994. He had too many assets titled solely in his name with no POD’s, so probate was not avoided. The pour-over trust his will created was based on the estate tax laws at the time and, while there is nothing inherently wrong with it, we are doing away with it so that everything can be put in a revocable trust for mil. It’s not hard, but it’s requiring some extra steps that could have been avoided. All of that could and should have been taken care of with an update. Thankfully, it’s almost ready to be wrapped up, but it has been nearly a year since he died.

bluebayou · July 22

^ if you do this, the only things that potentially get held up in probate are RE (like your house) and personal possessions, but at least all the financial accounts can be settled right away. If they are currently set up with each spouse as beneficiary, make the kids contingent beneficiaries in the event of primary passing prior to account owner.

As a community property state, California now allows your home to be transferred PoD/ToD by filing a simple form with the county registrar. This makes it easy for most of a simple estate to avoid Probate (and the need for a Trust/Will). In our case, everything goes to the kids PoD/ToD, so the only things left for Probate are the (old) home furnishings/clothes, which can be donated.

HouseChatte · July 22

We're in the middle of updating our wills, POAs, trust. House has been in already-existing trust -- MIL had hers in trust and DH was able to sell without waiting for probate.

Once one of us dies we'll have a family trust kick in for some of our assets. Terms will be that any withdrawals from that will need signatures from both sons as well as surviving spouse.

Medical POAs will include both sons (now 26 and 29), and we'll set up living will and other documents to be as explicit about our wishes as possible. DH had to make / implement MIL's wish to end nutrition and hydration at the end of her life, and we involved our sons. One of them took some more "are you absolutely sure" time than the other (it didn't hold up the decision), but they both had the same sober, analytic, careful approach to the decision. We told them if they had to face something like this with one of us, to remember that their relationship was the most important consideration in the face of any ambiguity.

tx5athome · July 22

My dad has dementia. He has a trust and a health directive. In both there was a clause that if two doctors agreed he was incompetent, my sister and I would take over. I am the primary for the health directive. We had the most trouble with the banks/brokerage firms. Each required their own POA, etc... I am not exactly sure why, maybe they can't be, but my dad's IRAs are not in the trust. So that is the only thing we can't manage. So I would recommend setting up automatic distributions so that it can run itself.

artloversplus · July 22

@bluebayou
"As a community property state, California now allows your home to be transferred PoD/ToD by filing a simple form with the county registrar. "

Can you give us a link to it? I cannot find it on my County's web site, in the recorders office.

artloversplus · July 22

Here are the top three benefits for a living trust:
https://www.legalzoom.com/articles/top-three-benefits-of-a-living-trust
One of the benefits that most people ignore is that a trust kept your will private. If you file with the county PoD or ToD, those information became public and your Son/Daughter may get unsolicidated offers or proposals from service providers. And if you designate a different inherent from your children/spouse, you will face challenges from your family.

My FIL/MIL Transfered their home to their son many years before their passing and their daughters were not informed. As a result, not only that stired up family fude at that time, but also created tentions among siblings even after their passing. Of course, that is an separate issue.

Wills and POAs

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