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Old 06-05-2015, 12:41 PM
67 posts, read 66,628 times
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My husband and I met and married in our 40's. We had both been previously married and had children from those unions, we have no children together. Our children are all grown and established.

We want to set up Living Wills and of course will engage an attorney to do that, but would like to have our ducks mostly in a row first.

We both have personal property that we would like to leave to our own children -- for example, personal jewelry and items that have come down to us via our families and thus should stay with our families. Do we need to itemize these things (possibly with photos for clear identification) for inclusion in a Living Will?

We want to leave furniture, other household items, real estate and personal property (vehicles) to each other of course, in the event one passes and the other still needs those things. But what is usually done after both have passed -- should we state we want all those things sold and the proceeds divided evenly among our several children?

What about choosing an Executor ... should we choose someone who is not a member of either side of our families so that the person can be totally impartial?

And what about POAs ... for example, could I choose both my husband and my son to hold POAs so that they would be "joint" or does a POA have to specify only one person?

Just looking for some ideas for now, what other people in our situation have done.

Thanks in advance for reading and considering!
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Old 06-05-2015, 12:58 PM
Location: Idaho
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I think you are asking for suggestions about a Will (Last Will and Testament) and not Living Will (which is also called Health Care Directive).

A typical Estate Lawyer will help you to prepare all three essential documents: Last Will and Testament, Health Care Directive and Durable Power of Attorney (for both Finance and Healthcare) at the same time. I don't know what is the current cost but when we had the documents prepared in New York 23 years ago, it cost us $500.

If you do careful research and understand all the financial and legal implications, you can do it yourself. There are software programs as well as online forms.

While the Last Will and Testament is unique for each situation, some states have standard forms for Health Care Directive and Durable POA. You can search the web, download the forms to understand what are involved.

For the Last Will and Testament, you can specify exactly what you want leaving certain items to certain people or to have the executor sells the estate and divide up the proceeds. You may want to check with your families to see if someone may be interested in certain items.

Regarding choosing executor, the key thing is to find one who is competent. From a legal point of view, I don't believe that an executor can be partial. Talk to your lawyer for advices on how to select and specify the role the executor.

Of course you can draft your own Living Will and add more details than the state Health Care Directives. You can search this forum for previous discussion on subject (I posted links to some webpages).

Regarding your question on POA, I think you have to assign a primary person and other as backup. You can check with your attorney to see if joint POA is possible or allowed in your state.

Last edited by BellaDL; 06-05-2015 at 01:47 PM..
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Old 06-05-2015, 02:21 PM
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As for cost, in the Phila Jersey are our estate planning attorney (who also does special needs trusts, gift to minor planning, probate issues, medicaid asset protection, applications etc)... charged 4K in 2008, for the will, med directive, DPOA, an asset protection action plan, with steps to take, etc.

Also, Of course you know the "personalities" involved-- but after you and your husband have done due diligence and carefully made your decisions...you might want to sit down with the adult children and let them know (in general) what you've decided....your stuff goes to your kids, his stuff goes to his kids, this will got to the grandkids, this person will have POA etc. So there are no surprises, and they all (or most of them) hear together what you've decidd as a couple.

As for the person chosen to be POA...I'd recommend a person who absolutely feels carrying out YOUR wishes IS VITAL -- even if that's now what they would do. You'll fight for your interests against all comers.

So there's no....mom wouldn't have wanted to live like this, dad said I could have, etc
ETA: oh yeah, and funeral and burial arrangements...suppose you each have separate family plots? Do you two want to be buried together, split up?

For example, technically your husband is the one who ordinarily and legally would speak for you and represent you if you were incapacitated. But how would your adult kids feel about that? about having NO say? and vice versa? Suppose the kids and spouse (on either side) disagree....is there a stalemate...or does someone get and "over-riding" vote to make certain decisions?

Also might you want to do some gifting now in intervening years. If so, Medicaid has a five year look back period.

We had a lawyer do all my mom and my aunts planning and they were single (widowed/divorced)...so their situations were fairly simple.

Last edited by rdflk; 06-05-2015 at 02:56 PM..
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Old 06-05-2015, 02:38 PM
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We just did all new paper work in long island last year.

2 new wills , disclaimer trusts, Power of attorney. health proxies and living wills were 5k
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Old 06-05-2015, 03:26 PM
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Arrgh ... okay, sounds like we will want to draft these up ourselves. Do they get formally filed "somewhere" or do we just keep in a Safe Deposit box or the like so they can be easily found?
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Old 06-05-2015, 03:32 PM
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i can go on for hours about the issues we have hit in our lives over wills that were defective or missing verbiage . i would never consider any documents not done by a well recognized estate attorney in my own state.

it isn't just the paper work but there are certain protocols done at the signing in many states as well.
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Old 06-05-2015, 03:57 PM
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I don't know if this is part of your question, but my mother and step-father were married over 30 years, had kids of their own on both sides, and died after we all had grown. While they were alive, they spent a lot of time doling their things out to the kids who wanted them, being the decision makers in that process. They asked us all to let them know if there was something we wanted, and over the course of a number of years, it was either understood by everyone that "so-and-so gets this" or it was given to them outright. By the time they passed, pretty much everyone already had in hand the things that were most important to them. When they went into assisted living, my sister walked around the house and photographed everything, posted it on line and gave everyone another chance to take what they wanted. Despite there being 6 of us, there were never any fights over possessions. Mostly, I think, because by the time this happened, our parents had already mediated the things that really mattered to everyone.

When they died, all 6 of us were written in the will as equal siblings (a whole legaleze page devoted to assuring that step-children were to be considered the same as natural children). The assets were liquidated and the money was split evenly.
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Old 06-05-2015, 04:47 PM
Location: Pennsylvania
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laws vary by state but in PA and NY safe deposit boxes are not accessible after the death except by someone whose name is already on the rental agreement.

Point being: if you put your wills in a safe deposit box, not sure who could get to them until after the estate is settled.

It'd be a lot simpler to leave a copy with your lawyer and/or the executer of the will.
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Old 06-05-2015, 07:43 PM
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My aunt had a safe deposit box....I as her sole heir, and executrix couldn't get into the box for MONTHS. (until I got a hold of the right person at some state office. Bank person said there had to be a state witness to open the box)

(I wasn't on the box -- AND didn't have a key)
And it didn't help that the person at the bank gave me the WRONG number to call to try to get the right contact. I was calling just a recorded number for MONTHS!)

OMG. I will never have a safe deposit box. That nightmare turned me off from them forever.

My mom's lawyer kept a copy of her documents. And my lawyer has a copy of mine.
Other paperwork is in a fire safe box hidden at home.

Last edited by rdflk; 06-05-2015 at 07:54 PM..
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Old 06-06-2015, 04:13 AM
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i would never ever think of not using not just an attorney but an estate attorney , especially in a 2nd marriage.

there were questions asked and protocols followed in front of witnesses that while not law are very important to do at the signing.

questions like are you on medications , do you understand what a will is , has anyone provided influence as to how things are being distributed, etc.

these are very important actions to take in a 2nd marriage.

our attorney writes articles on various topics and some of our states pitfalls are listed here. other states are very similar . most canned documents know nothing about this stuff.

Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience. Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.

We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.

The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.

A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process

Last edited by mathjak107; 06-06-2015 at 04:31 AM..
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