Although we might not like to think of it, death is a certain fate for us all. When we pass away, our families will go through a stressful and traumatic time as they come to terms with their loss. At the same time, there is a requirement for the administration of our estate, and this is usually bestowed upon a close relative or friend during this already painful time. However, a lack of foresight and planning can be catastrophic, leaving behind a tangle of assets and liabilities and possibly a hefty inheritance tax bill, depending on jurisdiction. On top of that, the absence of a will can mean a distribution of assets on the basis of standard 'default' rules, rather than on the basis of your individual preferences. In this article, we will look at some common provisions in the absence of any will, and aim to justify the benefits of making a comprehensive and clear will during your lifetime.
Most jurisdictions will bear some liability to tax on death. This can be a specific problem for the administrators of estates, usually close friends, who must ensure every known asset and liability is accounted for before making legacies and signing off the tax bill. A major problem comes with the personal liability attributed to the administrators, which means that should anything 'slip through the net' which is later discovered, there may be increased liability to tax. In practical terms, this could mean a surprise bill for several thousand which has already been distributed in legacies and for which the administrator must personally account. Providing for these outcomes in a will is one of the best ways of avoiding this hassle and stress, and it can also be the best way to ensure all assets and liabilities are uncovered. By drafting an effective will, you can be sure your loved ones don't face financial hardship after you're gone.
In the absence of a will providing specifically for the administration of a deceased's estate, it is up to the laws of intestacy to determine what happens to the entirety of our worldly possessions. Unfortunately, this doesn't usually correspond with the way we'd like things to turn out. For example, in a number of jurisdictions there are automatic provisions for spouses and kids, meaning you can disinherit, even with a will. There is also usually a default order of preference of who gets what and how much they get, which doesn't necessarily match your favourite relatives, or correspond to actual family set ups. In fact, cohabiters might run into problems getting anything, including the house in which they live without proper testamentary provisions in their favour.
As you can see there are a number of obvious benefits to drafting a will during your lifetime. Sadly, many thousands of people die each year without making these provisions, and it really is a real headache for their friends and relatives who are left with the burden of a fair settlement. Intestacy causes hostility and stress, which can be readily avoided by just simply making a written will. If you haven't made a will, it is probably a good idea to make a appointment as soon as is convenient with a legal adviser to do so, to ensure your family are provided for as you would intend and to promote a favourable distribution of your estate on death.
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The possibility of becoming terminally ill or debilitated is not something that is easy to ingest. A lot of people simply choose to brush it off as an improbable event. However, this risk shouldn’t be considered as a matter that is worth ignoring.
You should be prepared in such circumstances as early as possible. One of the valuable ways you could do that is through living wills for health care.
Living wills are legal documents that contain a person's specific wishes with regard to health care. These legally binding papers take effect in the event of severe illness and incapacity to convey preferences and make decisions about medical treatment and other life-sustaining measures.
The Triggering Circumstances
There are basically two broad situations in which advance directives in a living will may be valid: terminal illness, and permanent disability.
1) Terminal Illness
A terminal illness is a condition wherein death is anticipated within a fairly short span of time. More often than not, people dislike the idea of medical treatment for the sole purpose of sustaining life without restoring its quality.
While some families would deem this as acceptable, others simply consider it as prolonging the pain and suffering. Most living wills for health care deal with this kind of situation. Also, a lot of doctors would unhesitatingly respect the desires conveyed in the living will with regard to terminal care.
If you happen to be the type of person who prefers a shorter yet more comfortable life in the face of a terminal illness, you can certainly demand for it in your living will. So in case you become incapacitated and unable to communicate, your attending physicians and your family will no longer assume what you would have wanted since you've already outlined it for them.
2) Permanent Disability
Regrettably, some living wills fall short in addressing another main concern – permanent disability. It is a lot more difficult to arrive at any consensus as regards to this condition for two primary reasons.
First, the attending physicians and the health team may attempt to put in their own sets of values to a patient's care. While they may have the same opinion about withholding measures to sustain life in the case of a terminal illness, they may strongly contest the same action in patients with permanent disability.
The second reason is the existence of a wide assortment of chronic impairments. Because of this, people usually argue as regards to what constitutes an unbearable condition.
For instance, some may be terrified of a stroke that could result in the inability to communicate, while others may be scared of impaired mental capacity or permanent dependence. Simply said, the circumstances that could activate the application of a living will to permanent disability may vary on a case-to-case basis.
Needless to say, you – as the creator the living will – must determine the triggering circumstances. These conditions should be defined as explicitly as possible with reference to three main factors: type, severity, and irreversibility or permanence.
Terms like "impaired communication" or "loss of dignity" should be avoided since they may have different interpretations to different people.
Living wills for health care can indeed save the patient and his/her family a great deal of pain. They somehow offer answers that are often too difficult to decide on.
Aside from that, these legal documents provide a guarantee that the patient's wishes are implemented in the event of such painful and upsetting circumstances.
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