Whether you’re the parent reading this, or the unmarried daughter or son, the foregoing question may have been on your mind – or maybe it is now.
Q: At what age should someone create a Will or a Trust?
A: The answer is age 18 (age of majority), but age may not be the best indicator. People may need a Will if they have assets. Why? So that when they die – even if they are young – their assets will pass to whom they want. Without a Will, the assets of an unmarried person pass to his or her parents (if any are living), then to siblings (if any are living). From there on, it gets more complicated. If that person owns real estate, then a Trust is very useful because it can transfer real estate to the designated beneficiaries without Probate Court. A Will can’t do that.
Q: What about an Advance Health Care Directive (Living Will and Medical Power of Attorney)?
A: While some hospitals, doctors or other health-care providers might honor the directions of a parent or adult sibling of an unmarried person, that person is technically an adult at age 18 and, legally, “on his/her own.” So, every person of that age or older should have an Advance Health Care Directive (AHCD) to express his wishes about who can make medical decisions if he is unconscious or otherwise unable to communicate. That is just as important for end-of-life decisions (Living Will) as it is for medical decisions (Medical Power of Attorney). The worst case scenario is that without an AHCD, someone related to the incapacitated person, or their friend or partner, will have to go to Court and convince a Judge that she is the best person (on earth) to be making these critical decisions. A legal process like that can take months and cost thousands of dollars, or more.
I didn’t have any of these legal documents in place until many years after I turned age 18. Fortunately, I didn’t die or have any diblitating illnesses or injuries leaving me mentally incapacitated. If something would have happened to me, there would have been a big mess for someone to clean up.
Q: What about a non-medical Power of Attorney?
A: Assume that an unmarried person is the victim of a bad auto collision – and dies or is mentally incapacitated. Who is authorized to represent the victim in a personal injury or wrongful death lawsuit? No one, unless she has a non-medical Power of Attorney that designates who her “Agent” should be (or a Will designating who her "Personal Representative" is if she is deceased) in such circumstances. The “Agent” can also represent the person in various other legal matters such as employment termination, discrimination, making claims for disability benefits, and more.
Some of these things may not seem important, now, but they become amazingly important down the road when something unfortunate happens to the unmarried daughter or son and no steps have been taken to create contingency plans – such as those mentioned above.
You are welcome to call me at (801) 534-7271 if you would like to ask some general questions by phone. You may also meet with me in person (no charge for introductory meeting) to discuss how an estate plan could best be structured for you.