Do You Have The Will?

The June 2007 deaths of nine brother firefighters in Charleston, SC, once again reminds us of the dangers of the job we have. Each of us copes differently with the knowledge of this risk day in and day out. Death on the one hand is a sobering reality that...


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The June 2007 deaths of nine brother firefighters in Charleston, SC, once again reminds us of the dangers of the job we have. Each of us copes differently with the knowledge of this risk day in and day out. Death on the one hand is a sobering reality that we all recognize, yet for many it is a risk that we suppress from our consciousness.

What happens when one of us dies (and mind you, I don't mean from a "moving toward the white light" perspective)? I mean what happens to those we have left behind? Single firefighters with no dependents — you can stop reading here, although you might want to stash a copy of this somewhere just in case things change for you.

For those of us with spouses, children, parents or significant others who are depending on us, our death can bring about more than just profound sadness over our departure. It can bring financial ruin, bankruptcy, custody battles, litigation, homelessness and other inequities to those who don't deserve it. The solution starts with admitting to ourselves that we are engaged in a dangerous profession and that we owe it to our loved ones to make suitable arrangements. The next step is to actually make those suitable arrangements by sitting down with an attorney to develop a plan.

Estate Planning

Estate planning is a generic term for making arrangements so that when we die our wishes about a range of important matters are implemented. General Dwight D. Eisenhower is quoted as having said "Plans are nothing. Planning is everything." So it is with estate planning.

When a person dies, all of his or her property becomes part of the person's estate. An estate is a fancy way of referring to everything that we own at the time of our death. Unless allowed by law, property in an estate cannot be sold, given away or disposed of without approval from an appropriate court, often named a probate court. Probate is a process for handling the property and affairs of someone who has died. It is a judicial proceeding where a responsible person is named by the court to oversee the handling of the deceased's estate. The matters to be addressed by a probate court include inventorying all of a person's property, the payment of bills and taxes, the naming of a guardian if necessary for minor children, and the distribution of property according to a will or state law.

What Is a Will?

A will is a document prepared in accordance with state law that allows a person to give away her property when she dies. A will normally names a person to take charge of the deceased's estate and financial affairs. It also allows for the naming of a guardian for any minor children, and may set forth a method to provide financially for the children until they are old enough to care for themselves. A will may contain additional provisions for funeral arrangements, decisions about embalming or cremation, and similar matters.

A will is a formal legal document, and as such must be prepared and signed in accordance with certain legal requirements. These requirements vary from state to state. Just to clear up a common misconception, a will does absolutely nothing until the time of death. A will can be revoked or replaced with a new will at any time — up until death.

What happens if you don't have a will? Property that is owned by a person who dies without a will is governed by state law. As such there are 50 different ways that such property is handled. The ins and outs of probate law are too complex (not to mention boring) to discuss in this forum, but suffice it to say if you do not have a will, the result could be that those who least deserve to obtain something from your estate might become the beneficiaries and those who deserve it those most might not.

In addition, if your death leaves a minor child parentless, the lack of a named guardian will require the probate court to wrestle with appointing a guardian. When appointing a guardian, a probate court will apply the standard of what is in the child's "best interests." However, the court's choice may not result in the selection of a person or persons who you would approve to raise your children. The process has also been known to lead to custody battles between various factions within families, or a battle between in-law sides of a family.

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