Isn’t it strange how Wills and old age seem to go together? But a Will can do much more then instruct successors on who gets grandma’s fine china. Estate planning is particularly useful and arguably more important for parents with young children. Through proper estate planning you can appoint a guardian to raise your kids in your absence and to provide the financial means to support their health care, education, and day-to-day needs.

This estate planning primer is not meant to take the place of legal advice from your attorney. Rather, we hope that by providing you with some of the basics of estate planning, you can remove a lot of the intimidation factor that may have hindered you from taking this all-important step in preparing for the future.

There are three tools every estate plan should include: a Will, Health Care Directives, and a Durable Power of Attorney for Finances. Depending on the size of your estate and your personal preferences there are some other tools that may be incorporated as well.

The Will. The most basic element of an estate plan is a Will. In a Will, you state who you want to inherit your property and name a guardian to care for your young children, should something happen to you and your spouse. Some interesting facts about what makes a valid Will:

• A Will must be in writing. Don’t be deceived by Hollywood portrayals of video-taped Wills, those are no good. If you want to record yourself reading your Will that’s fine, but be sure you have the document in writing.
• You must sign your Will at the bottom. Be careful not to write anything below your signature. Many states will not consider language below the signature to be part of the Will.
• Your Will must have the signatures of two witnesses. These witnesses must either witness you signing the Will or witness you acknowledging your signature that is already on the Will. Both witnesses should be in the room with you at the same time so they can witness each other’s signature as well. Some states also require a notary public to notarize the Will.
• There is a type of Will that does not require witnesses. This is called a Holographic Will. To be valid, a Holographic Will must be entirely in the handwriting of the testator (the person whose Will it is and be signed at the bottom.
• You can revoke your Will at any time up until you die. This revocation can occur in one of two ways. The first is that you destroy the Will with the intent of revoking it. This act of destruction can be burning, tearing, or obliterating the Will. But remember you must intend to revoke it. For example, if your Will is destroyed in an accidental fire it is still valid and a copy of your Will can be used in its stead. Be careful not to write on your Will or scratch out any names or phrases as this could be viewed by the court as an act of destruction.
• If you acquire new property, or want to make some small changes to your Will but do not want to create an entirely new Will. You can draft an amendment to your original Will. This amendment is called a Codicil.

Health Care Directives. The second necessary element of every estate plan is health care directives. Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. There are three health care directives that you should have: a Health Care Declaration (or Living Will, a Durable Power of Attorney for Health Care, and a HIPAA Privacy Authorization Form.

• A Health Care Declaration or Living Will is a written statement you make directly to medical personnel that details the type of care you want (or don’t want if you become incapacitated. This can include whether or not you want to be sustained by life-support, receive blood transfusions, or have surgery.
• A Durable Power of Attorney for Health Care gives someone you choose the power to make medical decisions if you can’t. This person becomes your agent and will have the responsibility to see that doctors and other healthcare providers give you the type of care you wish to receive. The person you choose should be someone you trust completely and with whom you feel confident discussing your wishes for medical care.
• You should sign a HIPAA Privacy Authorization Form naming your health care agent. This is a new requirement under the Health Insurance Portability and Accountability Act. Without a HIPAA authorization the doctors and medical personnel cannot release any of your medical records to your health care agent.

Durable Power of Attorney for Finances. With a durable power of attorney for finances you give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name will be responsible for paying your bills, selling your property, or otherwise handling your finances. The person named should be someone responsible whom you trust absolutely.

Other Estate Planning Tools Outside of the basic tools listed above there are other ways to plan your estate. One of the most commonly used tools is a Living Trust. An advantage of using a Living Trust is that your survivors won’t have to go through probate court (a timely and often expensive process to receive the property. Other tools include life insurance and payable on death bank accounts, which pay their remaining balances to a named beneficiary upon your death.

Do-It-Yourself v. Attorney. Any bookstore will have do-it-yourself Wills, trusts, and estate planning books. The quality and value of these books vary. The risk with using a do-it-yourself form book is that the books are written to a generic audience. Estate planning laws are different from state to state and federal taxation laws are changing every year. Having an attorney draft your Will ensures your specific needs are accounted for and that the language complies with your particular state’s laws.

Review your Will Periodically. Once you have your Will and estate plan in place it is a good idea to review it periodically. You should try to review your Will every couple of years especially after major events such as births or deaths. You don’t necessarily need to change your Will every time you review it, just check to make sure that it still accurately reflects your situation and your wishes.

– Heath Hirschi

Heath Hirschi is an attorney who practices estate planning law at the Hirschi Law Group in Phoenix, Arizona.