So what happens and who inherits from us if we do not have a will?
The estate is distributed by law by the estate administrator, or “Administrator,” appointed by the court. And so, if one leaves behind after our death:
- spouse and children – the wife/husband receives the first $50,000 and half of the remaining estate, and the children get the rest
- spouse, and no children – the spouse receives everything
- children, but no spouse – the children receive everything
- parent or parents, no spouse or children – parents receive everything,
- sisters and brothers – in equal parts.
- descendants of grandparents – i.e., parents’ siblings, half on the mother’s side and half on the father’s side,
- children and grandchildren – living children in equal parts, and grandchildren, if the children are deceased, equally inherit the deceased parent’s share.
And if you don’t want such a solution? What happens if there is no will and minor children are left behind? If children are under 18 years of age, the court appoints a guardian (tutela) for the child, who will also manage the child’s assets until the child reaches adulthood. In most cases, this will be the surviving parent, but beware – there is no guarantee! Furthermore, the guardian will have to pay a bond, and the premiums that must be paid are quite costly.
Also, an application must be submitted to the court for court approval of expenses for school, and even food or clothing for the child. In addition, an annual statement of expenses and income must be presented to the court. Finally, the type of investments a guardian can make is limited. All of this can be avoided if you prepare an appropriate will.
In the event that both parents die at the same time, it is good to appoint a separate guardian for the child’s care and a separate one for managing the assets. Well, but such a will still has to be recognized by the court. Yes, but the court usually honors the provisions of a will. Such a will is the parent’s last wish and serves as a guide for the court. A will appoints an executor, i.e., a person authorized to manage the estate until it is fully distributed among the heirs.
Who can be the executor of your will?
A family member, a friend, a lawyer, even some institutions. A trusted person who often helps with property matters.
What does not need to be transferred by will?
- real estate with spouse
- life insurance
- retirement insurance
- a wife has the right to a car and certain items regardless of the disposition
Living Will and HCP. What is it?
Advances in medicine have meant that we will have to undergo many controversial medical treatments, such as “life support systems,” which prolong not the quality of life, but the time of remaining alive. Nevertheless, each of us has the right to express our wishes now, while still in strength and mental capacity, using two documents: a Living Will and a HealthCare Proxy, i.e., a Healthcare Power of Attorney.
A Living Will therefore contains our wishes, now when we are in good health, regarding future treatment. Many people wish to express their desire and refuse unwanted medical treatment. A Living Will aims to foresee situations where there is no medical chance of recovery and normal functioning, and only life support remains. The instructions cover most such situations, but can also be more general.
Healthcare Proxy
A HealthCare Proxy is a document by which you can designate another person to make treatment decisions for you when you lose the capacity to make such decisions yourself. A HealthCare Proxy can be general and cover all decisions or can be limited to certain instructions.
Who can be a healthcare agent?
A close or trusted person, often a family member.
When does a Living Will come into effect?
Upon a statement from the attending physician that, according to medical knowledge, the person has suffered such health damage that they are unable to make decisions independently.
Can the agent then make all health-related decisions?
Yes, all decisions consistent with the patient’s religious beliefs and ethical principles if they are known to the agent, and if not known, then according to the principle of “what is best for the patient.” Only decisions related to artificial nutrition require the agent to have specific information in the HCP or Living Will; otherwise, they cannot act in that direction.
When does the HCP have the right to decide when to stop or continue artificial feeding?
When they receive the opinion of the attending physician and an independent written opinion from a second physician that the person is not fully capable of making such decisions. If the bedridden person is also mentally ill, then this second opinion should come from an expert psychiatrist or neurologist.
Can you have more than one agent at the same time?
No. You can only designate one person, but if that person cannot, does not want to, or is unable to make medical decisions, a “substitute” can replace them.
When does the HCP expire?
If no expiration date is set, the HCP remains in effect until the end of the life of the person for whom it is designated.
Are witnesses necessary?
Yes. Two witnesses to confirm the patient’s signature. They must provide their names and addresses. Witnesses confirm that no pressure or threat was used to coerce the patient’s signature. Witnesses cannot be agents. Furthermore, the signature must be notarized.
Should both the HCP and Living Will be signed?
Yes. A Living Will contains information about treatment methods or life support when there is no HCP or it cannot be accessed. A Living Will provides guidance for the HCP on how the person wishes them to act on their behalf, and the HCP should convey this information to the doctors. Also, if doctors suspect that the agent is not acting in good faith, it is good to present copies of the Living Will for verification.
How many originals should be signed?
More than one can be signed, although photocopies should also be accepted. Both the original and copies should be given to doctors, the healthcare agent, their substitute, a lawyer, close and trusted persons, and of course, at least one copy should be kept for oneself. It is recommended to carry information in your wallet about the existence and location of such a document.
Can I change my mind and revoke the Living Will and Health Care Proxy?
Periodic verification of documents to ensure they meet the person’s wishes is advisable. You can change, revoke, and appoint a new agent by destroying the document and preparing a new one. You must then notify all persons who are in possession of such a document of the changes, both orally and in writing. It is recommended to keep a dossier of this type of documentation.
Are these documents valid if I move to another state?
NY State is very strict compared to other states regarding the execution of such documents, but you should inquire in your new place of residence, as each state is governed by its own laws. According to NY law, if an HCP signed in another state is consistent with local law, it will be honored. Even if you are only temporarily in another state, you should have your documents synchronized with local law.
Other documents helpful with HCP?
Authorization for someone to manage assets and provide funds for treatment and healthcare.
