By Sara Duris
August is national Make A Will month but many people ask why is it important to have a will? A Last Will and Testament is a legally binding document that outlines your wishes after your death. This includes:
- Who receives your assets
- Who will care for your minor children or dependents
- Who will oversee the administration of your estate (your executor)
- Any charitable donations or gifts you’d like to make
- Specific instructions for your funeral or burial preferences
According to a 2024 survey by Caring.com, nearly 7 in 10 American adults don’t have a will or any estate plan in place. The most common reasons noted were not having the time to create a will, not having enough assets to need one, and the belief that it is too expensive and complicated to create one.
However, not having a will creates far more complications, especially for the people you leave behind. And estate planning isn’t just for the wealthy. It’s for anyone who wants a say in what happens to their belongings, their loved ones, or their legacy.
In short, a will is your voice when you’re no longer here to speak for yourself. Without it, those decisions are left up to the state. If a person dies without a will in the state of Michigan, or dies intestate, then the person’s assets are divided in accordance with Michigan intestacy laws. These laws set forth a particular succession in which family members will inherit assets from a person who dies intestate. A probate court that is administering the person’s estate will identify heirs to any assets through the laws of intestate succession. If you or a family member is in a situation where a death occurs without a will, there are legal steps that need to be taken in order to resolve this situation which likely will require an attorney to be involved.
Advanced Directives are also important documents that individuals need to consider creating. Many people assume that their family members will automatically be able to make decisions about medical treatments if they were to become incapacitated. However, rules vary greatly from state to state:
- Your family may have to go through a costly and time-consuming court process to get the legal right to make medical decisions for you.
- Your family members may disagree on who should make medical decisions on your behalf, which could lead to legal disputes.
- Someone unfamiliar with your preferences may be placed in charge of your treatment choices.
It’s important to have a plan in place ahead of time to avoid disagreements around treatment issues and to ensure your wishes are honored if you are incapacitated. Advance directives, living wills, health care proxies, and powers of attorney can help ensure that decisions made on your behalf meet your needs and preferences. Here are some brief definitions:
Living Will: A written record of the type of medical care you would want in specified situations.
Advance Directive: Often refers to a combination including both a living will and health care proxy documents.
Health Care Proxy or Patient Advocate: Names someone you trust as your proxy, or your agent, to express your wishes and make health care decisions for you if you’re unable to speak for yourself.
Power of Attorney: Names someone you trust as your agent to make property, financial, and other legal decisions on your behalf.
The main difference between a Health Care Proxy and an Advance Directive is who or what will be speaking on your behalf in your absence. In the case of a Health Care Proxy, a trusted loved one will be given responsibility. However, with an Advance Directive, your decisions regarding medical intervention and end-of-life preferences are clearly stated in a legally binding document rather than a living person. Patient Advocates or Proxies are sometimes referred to as a “Durable Power of Attorney for Health Care.” These documents are not the same as a general durable power of attorney or power of attorney for finances.
In most cases, you do not need a specific form to create an advance directive, living will, or health care proxy. However, you may want legal assistance if you have uncommon wishes, or if you anticipate disagreements among family members. You should usually consult an attorney to draw up a durable power of attorney. If you don’t get legal assistance, remember that your documents should comply with any rules in your state and cover all the issues that are important to you.
For help creating these documents or information on how to comply with your state’s rules, you can contact:
Michigan’s State Attorney General office, 517-335-7622, www.michigan.gov/ag
or the Department of Health and Human Services, www.michigan.gov/mdhhs
The National Hospice and Palliative Care Organization, www.nhpco.org
or any of our local hospice organizations
The American Bar Association Commission on Legal Problems of the Elderly, www.americanbar.org
or Michigan State Bar Association, www.michbar.org, or area Elder Law attorneys
Lakeshore Legal Aid of Michigan 888-783-8190 or Legal Aid of Western MI 269-983-6363
As always, contact Region IV Area Agency on Aging, for questions and information on aging and disability topics, by calling 1-800-654-2810 or online at AreaAgencyonAging.org. Sara Duris is community information liaison of Region IV Area Agency on Aging in Southwest Michigan. The Generations column appears each weekend in The Herald-Palladium.