Where There's a Will, There's a Way
With no will, it's more challenging. A friend died recently with no will. Where do we go from here?
When a close friend passes, grieving is just the beginning. Then there is the job of picking up the pieces of her life. After my friend died, I discovered that I could not help with cleaning up her apartment because she had less time than she thought to leave a living will, advance directive, or executor. She did not name an executor who is in charge of all the personal assets of a person who has passed. But she did fill out a POLST form with her doctor.
Following are definitions of terms that I looked up to understand the difference between the legalise involved in end-of-life planning with no will:
An an advance directive or living will, you leave clear instructions about your preferred medical care and who should make treatment decisions for you. A living will is a type of advance directive, while “advance directive” is a broad term used to describe any legal document that addresses your future medical care. Freewill.com says that all living wills are advance directives, but not all advance directives are living wills. The difference between an advance directive and a living will depends on which state you live in, and how the state defines each of these terms. You can check your state legislature’s website to figure out which terms your state uses.
“A will outlines a person’s wishes for their assets and property that will be distributed after their death. In contrast, a living will outlines a person’s wishes for medical treatment and health care decisions if they’re unable to communicate their wishes. A living will guides loved ones and medical professionals on matters that include life-sustaining treatment, pain management, and organ donation. It’s critical to have both a will and a living will in place to ensure your wishes are carried out both in life and after death.” Source: National Council on Aging
According to freewill.com, advance directives and living wills are legal documents that help you plan for a time in your life when, due to an injury, old age, or failing health, you can no longer communicate your wishes about your medical treatment. An advance directive, sometimes called a "living will," is a written document that tells your health care providers who should speak for you and what medical decisions they should make if you become unable to speak for yourself.” An advance directive allows people to name who they want to speak for them should they be unable to speak for themselves.
POLST forms (The Physician Orders for Life Sustaining Treatment) are medical order forms that tell medical staff what to do if you have a medical emergency and are unable to speak for yourself. POLST addresses a range of life-sustaining measures and allows a person to choose treatment, as well as forego treatment. POLST offers a way to communicate an individual’s end-of-life choices on an easily recognizable form that can travel between care settings and is immediately actionable by health care providers. Only licensed medical professionals may interpret or implement a POLST form. (Source: freewill.com)
A DNR form (do-not-resuscitate) only addresses resuscitation and only allows for forgoing treatment.
Executor (Source: freewill.com)
The duties of an executor (the person named in a will to carry it out) include the following:
identification and collection of the assets of the estate,
the safeguarding and investment of those assets pending distribution to beneficiaries,
the payment of debts and liabilities owed by the estate,
the filing of appropriate tax returns for the deceased and the estate, and ultimately the distribution of assets to beneficiaries in accordance with the provisions of the Will.
If there is no will, It's up to the probate court to appoint an administrator of an estate when there's no will. But how does the court, without guidance from a will, choose someone? Judges turn to state law when they must choose someone to wrap up an estate. Every state sets out an order of priority for judges to follow when appointing an administrator. For example, here is the priority list for serving as an administrator in Oklahoma:
Surviving spouse, or a person the surviving spouse nominates
Children
Mother or father
Brothers or sisters
Grandchildren
Next of kin entitled to inherit under state law
Creditors
Any legally competent person
In California, if in the unfortunate event someone passes away without a will, if there is a surviving spouse in most cases they will inherit 50% of the separate property, while the remaining 50% will pass to the deceased's children, parents, siblings, and other relatives - according to California's intestate succession law.
Something To Think About (source)
Drexel.edu lists “Six Essential Questions About Your Will.” Try to answer the questions, yourself, then go to the site to find the Drexel.edu answers.
1. Do you think that only rich people need a will?
2. Do you think you only need a will if you have dependents?
3. Do you believe the state will take care of everything for you?
4. Do you need to review your beneficiary designations to keep them up-to-date?
5. Are you too young to need a will?
6. Can you just leave everything to your spouse?
Conclusion
I still have much more to learn, when there is no will, but for now, I grieve for my friend’s passing, make a slide show, and inform our mutual friends/work associates of her passing. I am doing what I can do, since my interest and skills are making life story videos and providing engagement and education.
A lesson for all: make your will before you can’t.
About
I delve back into my past learnings and experience in making end-of-life transitions as an Educator (EdD in International & Multicultural Education), Life Transitions Counselor (MA in Life Transitions Counseling), Certified LeaveLight Facilitator (LeaveLight, Holistic End-of-Life Planning, 2010) and Certified Active Living Model Counselor (USF, 1995 to present). By the way, LeaveLight, A Holistic Guide to End-of-Life Planning, by Marilyn Geary and Jacqueline Janssen, can be a helpful resource for those who choose to learn more about that stage of life.
Resource
Templer Estate Planning cartoon video posted on YouTube by Caversham November 14, 2019: Why do you need to make a Will? Templar Estate Planning's cartoon video explains why you need to make a will: the benefits you will gain and the problems you can avoid. Do you want to ensure that you hard earned assets go to those you want to receive them and in the correct shares? Did you want to avoid family rifts after you are gone? Then you need to make a Will without delay.