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Writing a will

Estate Planning: Wills and Living Wills

It's not always easy to think about such things as wills and other end-of-life issues, whether or not you have lung cancer. Consciously or unconsciously, you may push aside uncomfortable or negative thoughts in order to focus on fighting your illness—and staying alive.

It's common for people to procrastinate about taking care of estate planning. But it's a fact of life that we need to protect personal finances, and estate planning can help you do that.

Estate planning is the process that covers the transfer of property and other personal matters at death. A will is most often the core document associated with the process of estate planning. It may be helpful to think of a will as a necessary and routine legal matter. Basically, it specifies who receives (inherits) your property upon your death.

What is a "living will"? Technically called an advance directive, it is a legal document that specifies the type of healthcare you do or do not wish to receive, including whether or not you want extraordinary measures taken to sustain your life. It allows you to make your choices known in advance of an incapacitating illness. You decide the level or type of care you want or don't want if you are ever in a terminal condition.

Where There's a Will

Although most Americans are aware that they need a will, about 70% don't have one. It's a common misconception that drawing up a will can be expensive or complicated. But it doesn't have to be. Many wills are simple documents. You may not even need a lawyer, if you own just a home, some investments, and a few personal items. Some people believe if you do your research thoroughly and use good self-help materials, it's not difficult to make a will by yourself. Others may feel more confident using a qualified lawyer to interpret the laws involving property rights, taxes, and trusts. Of course, if you have young children, you'll need to appoint a guardian to take care of them, as well as someone to manage any property they inherit from you.

If you do use the services of an estate-planning lawyer, you can save time and money by preparing for the meeting beforehand. Organize all paperwork about your assets, liabilities, previous wills, life insurance policies, employment benefits, and any prenuptial agreements or divorce decrees. Also, talk to family members about your estate plans.

When to Consult a Lawyer

Here are a few examples of situations in which you may wish to consult with a lawyer:
  • You have valuable assets (over $1 million) that will be subject to federal and state estate taxes unless you engage in tax planning.

  • You want to make complex plans for what happens to your property, instead of just naming who inherits it. For example, you may choose to leave your house in trust to your spouse until he or she dies, and then the house will be left to your children. People who have remarried may wish to consider this type of trust.

  • You are a small business owner and have questions as to the rights of surviving owners or your ownership share.

  • You must make arrangements for long-term care of a beneficiary, such as setting up a trust for an incapacitated or disadvantaged child.

  • You fear someone will contest your will on grounds of fraud or will claim that you were unduly influenced or weren't of sound mind when you signed it.
In any case, whether you write your own will or your lawyer prepares it, you must sign and acknowledge it in the presence of witnesses.

Creating a Living Will

If you are considering a "living will" or an "advance healthcare directive," this is another situation in which you may choose to speak with a lawyer. Together, you can prepare a legally enforceable document to inform your doctor, healthcare providers, family, and friends about how you want to be treated if you cannot speak for yourself.

An alternative would be to contact "Aging With Dignity." This private, nonprofit organization has created Five WishesTM, a document similar to a living will that can be prepared without the assistance of a lawyer. Five Wishes helps you do the following:

Wish 1: Name the person who will make healthcare decisions for you when you can't (and also name second and third choices if that person is unavailable).

Wish 2: Specify the kinds of medical treatment you want and don't want.

Wish 3: Detail what, if any, life support measures or pain medication you want.

Wish 4: Specify how you want people to treat you at the end of life. Would you prefer to be in a hospital, at a hospice, or in your own home?

Wish 5: List other details you want your loved ones to know.

Aging With Dignity has consulted legal experts, including the American Bar Association Commission on Legal Problems of the Elderly, to ensure Five Wishes would be considered a legal and binding document in as many states as possible. To learn if your state is among those that currently recognizes Five Wishes as a valid document, click here.

Even if Five Wishes does not meet your state's legal requirements as a valid, enforceable document, you can still use Five Wishes as an informational guide to your care providers. To use Five Wishes as a legally binding document in those states that will accept it, you must complete the official paper version available from Aging With Dignity.

Formalizing Your Wishes

Taking care of end-of-life issues and preparing a legal will are simply wise actions for any person. Making sure your financial and legal affairs are in order can help reduce stress and leave you free for other matters—such as getting through treatment and enjoying your life!

Sources of Information

For additional information about end-of-life issues, you may wish to contact these organizations:
  • American Bar Association (ABA)
    750 N. Lake Shore Drive
    Chicago, IL 60611
    1-312-988-5000
    http://www.abanet.org
    Offers consumers information on various legal topics.

  • Last Acts
    National Program Office
    1620 I Street, NW, Suite 202
    Washington, DC 20006
    1-202-296-8071
    http://www.lastacts.org
    A national coalition that provides education and information to improve care for people who are dying and their families.

  • Aging With Dignity
    1-888-5-WISHES (1-888-594-7437)
    http://www.agingwithdignity.org
    A nonprofit organization that provides practical information, advice, and legal tools needed to ensure that final wishes are respected.