For the past 18 months, I was on a leave of absence from Firehouse® Magazine in order to care for two ailing and elderly mothers, and eventually settle their estates after their deaths. During that time, I have sold three houses, purchased one, conducted an extensive estate sale, placed two elderly women in long-term residential care facilities, and confronted dozens of often-complicated legal and financial decisions. I've been called upon to work intimately with family members to resolve major financial issues and make fundamental quality-of-life decisions.
Fortunately, I was blessed with cooperative families, and parents who had prepared well for these situations. Even so, it has been a demanding and difficult time. I have learned much about how the law works, not from the perspective of being an attorney, but from the perspective of being an "end user" of the law. There are many important lessons for all in the fire service to learn.
Some day, we all will die. It's not a pleasant thought, but it is inevitable. Further, many of us (some estimate one in three) will at some time be incapacitated and unable to make basic health care and lifestyle decisions. As I learned, adequate preparation for this inevitability makes an enormous difference in the lives of our loved ones. Estate planning is important for everyone, not just the wealthy.
Volumes have been written about estate planning, so it is impossible to address all of the important financial, legal, spiritual, social and other components of estate planning. Dennis Smith undoubtedly will be addressing the financial elements of estate planning in his First Responder Finance column. However, there are a couple of essential legal items that should be the starting point for all.
The most important is to execute a will and update it whenever there are significant life changes. A will simply is a document that directs how a person's property will be disposed upon death. In a sense, everyone has a will since the state will decide how to dispose of the possessions of anyone who does not have a will (known as dying "intestate"). Having a will is especially important for everyone who is married or has children. However, even a single person should have a will that explains how his or her assets should be distributed after death.
The laws of intestate succession typically are complicated, with many significant details, limits and exceptions. But, most important, when a person dies intestate, the process of distributing assets is controlled by the courts, and not family or friends. Having a will is the only way that we can assure that our property goes to those who we want to receive it.
A properly drafted will does more than distribute money. Most important, a will should be used to name a guardian for minor children and for their property. Without a will, a court makes this decision. Similarly, if there are tangible possessions of particular interest or value, such as family heirlooms, real estate or a valuable collection, a will is essential to assure that they are appropriately distributed, and not merely sold off.
A will does not need to be a complex document, but it must contain several elements. The maker of the will must be an adult (generally, over age 18) who is mentally able to understand that he or she is executing a will and what the will accomplishes. It must contain a provision that disposes of the property. It must appear to a court that the will is the final expression of the person's wishes for disposing property at death.
It also is important to designate a person to handle the business affairs of the estate. This person, known as the executor, is responsible for preserving and protecting the estate's assets, paying any outstanding debts and distributing the assets according to the will. Needless to say, this person should have common sense, good judgment and a good sense of fairness. The job of executor carries with it significant responsibilities, and requires serious time and effort. There are difficult, important decisions to make and tedious paperwork to complete.
One of the executor's first responsibilities is to make an inventory of all the estate's assets. There is no legal requirement to keep a list of accounts, investments and other important financial records, but doing so will be a big favor for the executor. I was fortunate in that both my mother (a librarian) and mother-in-law had well-maintained financial records, which saved countless hours and headaches.
In addition to preparing a will, it is important to make decisions about medical care in case of a grave illness or critical injury. Every state recognizes that patients have a right to make fundamental choices about the care and treatment they will or will not receive at that time. A "living will" (or "health care power of attorney" in some states) is the document that both expresses those wishes and gives others the legal power to execute them. Additionally, the living will should address matters such as organ donation and any religious views that should be honored.
Further, it is important to enable others to take care of our business affairs in the event that we become disabled or legally incompetent. This is best done through a "durable power of attorney," which authorizes another person to make financial and other decisions upon an individual's disability.
In my case, power of attorney documents were invaluable tools in dealing with nursing homes, banks, insurance companies and other financial institutions. It is important to think through these situations, decide in advance what we want to be done and give someone the authority to carry out our wishes.
We in the fire service regularly confront the death and incapacity of others. We should recognize better than anyone else the need to prepare for such situations. Estate planning is not just for the rich. It is important that we all prepare a complete estate plan.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
