Do You Have The Will?

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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.

Is a Will All I Need?

Is the solution to estate planning simply to run out and write up a will? For many people, a simple will is sufficient to address all of their estate planning needs. However, a will is not the only consideration. As General Eisenhower advised — it is the planning process that is more important than the actual plan. It is not the will per se, but the fact that we sit down and contemplate what we desire that makes estate planning so important. Failing to properly plan may defeat the intent of even a well-written will.

When we die, there are basically two things that can happen to our property. First, property can become part of our estate. Second, property can pass directly to some other person by operation of law. Which of the two will occur depends on how we own the property in question. Property that we own outright in our own name passes upon our death into our estate.

Property that we own jointly with another may become part of our estate, or it may pass directly to the other party by operation of law. Property that is owned jointly with a right of survivorship passes directly to the surviving joint owner "by operation of law." Joint property that is owned without a right of survivorship passes into a person's estate. Consider the following examples:

  1. A and B own property jointly with a right of survivorship. If A dies, B becomes the owner of the entire property. Real estate and bank accounts are two examples of property that is commonly owned jointly with a right of survivorship.
  2. A and B own a piece of real estate together, but do not have a right of survivorship. If A dies, A's share in the real estate passes into A's estate, and A's heirs may become the part-owners of the property.

Only property that is part of a person's estate is subject to the person's will, or absent a will, is subject to state inheritance laws. Is this a problem? It can be. Consider Example 2. Assume A and B are firefighters who also are partners in a vacation home. Each owns an equal share of the vacation home without a right of survivorship. If A dies, his share in the vacation home passes into his estate. As a result, when A dies, B will have a new partner. Initially the new partner will be the estate of A, but eventually it may be A's heirs. That could be A's surviving spouse, parents or siblings. It could also be A's estranged wife or A's minor children (who as minors cannot make any decisions regarding the property), creating a potential nightmare for all concerned.

As if that is not bad enough, consider Example 1. If the vacation home is owned by A and B as joint tenants with a right of survivorship, and A dies, B will become the sole owner of the vacation home. Is that a problem? Why do I waste your time with these boring examples? Because if A had a simple will and did not consider how he owned the vacation home with B, his intention to leave his share of the vacation home in his will may fail.

Assume A is divorced with two children, C and D. Assume A's will states that C is to get A's share in the vacation home, and D will get another piece of property. The problem is that upon A's death, the vacation home passes to B by operation of law and C gets nothing. This is an example of how a will can be defeated, and why it is absolutely essential to discuss your specific situation with a lawyer in order to formulate a plan.

Estate planning is particularly important in modern times given the complexity of many relationships, including those with ex-spouses, ex-ex-spouses, stepchildren, half-siblings and domestic partnerships. This planning process forces each of us to discuss some fairly uncomfortable subjects such as potential guardians, organ donations and funeral arrangements. For example, consider my personal situation — my wife's family prefers cremation and small private funeral services. If I am killed in the line of duty, I want a full fire department funeral, including sufficient funding to ensure libations for all attendees. By sitting down and discussing this, and by placing my desires in my will, the likelihood of an unnecessary confrontation between folks like my brothers (a firefighter and a police officer) and my wife's family is lessened.

What Do I Need to Do?

Here's what you need to do: See a lawyer. A simple will should range in price from $100 to $250. Some firefighters have prepaid legal insurance through their employer as a benefit that will pay for a simple will. More complex estate planning can raise the cost, depending on one's unique situation, but that can be determined only after discussing the facts with your attorney.

Stay away from do-it-yourself will kits. Wills may not be rocket science, but there certainly is a science (a body of professional knowledge) that warrants the help of a professional. Wills are but one component of estate planning and without the advice of an attorney your wishes may be inadvertently defeated by a will kit that does not take into account issues such as joint ownership of property, ex-spouses, stepchildren and related matters.

Recognizing the need for emergency responders to have wills, Attorney Anthony C. Hayes, of Columbia, SC, created a program called Wills for Heroes. Started shortly after the 9/11 attacks, Hayes wanted to ensure that all first responders have the opportunity to obtain wills and simple estate planning. The Wills for Heroes program offers free simple estate planning to firefighters, police, emergency medical technicians, paramedics and other first responders. Additional details about the program are available at www.willsforheroes.org. To date, eight states have adopted the program and two more are in the process.

Discussing the recent tragedy in his home state, Hayes said, "I have seen first hand the impact of firefighter deaths upon those left behind in Charlestown, and it is devastating." To America's firefighters, he says "Please remember — it's not about you. It's about your spouse and children."

I could not agree more.

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