How to Write a Living Will

Over 500,000. That was the number of people who have died from Covid-19 as of early March. The pandemic continues stealing mothers, brothers, sisters, friends. So much loss is hard to grasp. Death is not a subject we want to talk about, but the tragedy becomes worse when a loved one dies without a will or plans for burial, and familial infighting begins as assets are divided and argued over. My father died suddenly at 39 years old, and it tore my family apart.

He had a massive heart attack just a few weeks shy of his 40th birthday. The call came in the middle of the night. All I could think on my way to the hospital was how I would admonish him for smoking, drinking beer, and not taking better care of himself. It never entered my mind that I wouldn’t get a chance to have that conversation. I barely heard the doctor when he said my dad was gone. My mother was shattered. She retreated into herself. Decisions had to be made about organ donation, cremation, funeral homes, making the calls—everything that has to be done when death comes unexpectedly.

It is strange after someone dies. Suddenly your refrigerator is filled with casseroles. Everybody brings food to help fill your sad longing. Right now, families across the country, and the globe, are experiencing that deep well of despair, that loss of connection, with some not even able to hold a hand, or put a cool cloth on a forehead, to find closure with a final goodbye. That is its own dark hell, but imagine trying to decipher what your loved one wanted for funeral arrangements—did they want to be buried, cremated, organs donated? Those are the immediate questions.

Once the funeral is over comes even more difficult terrain.

If there is no will and no surviving spouse, how are the assets split? Who gets your father’s pocket watch? Who gets the Martin 12 string guitar your father wrote songs to you on? What about life insurance money? Things get complicated, feelings get hurt, and sometimes relationships are irreparably damaged. When a loved one dies without a will it is called intestate, and your family is then subject to the state’s intestate succession rules. Your wishes are irrelevant. University of Tennessee law professor Amy Hess advises, “If you want your estate managed by someone who you trust and who will have your beneficiaries’ best interests at heart, you want to write a will.”

There are many resources out there to help you solidify your plans, even before a visit to an attorney. Estate planning is about more than just executing a will, and there are steps you can take to facilitate the process while you’re still here, to make it easier on your loved ones once you’re gone.

• If you own your home, you will need a copy of the deed (or mortgage, if you're still paying it off).
• Gather a list of your assets, noting if they are owned jointly with anyone else, such as cars, bank accounts, and heirlooms.
• List any debts and taxes, or any amounts your estate may need to pay out.
• List your beneficiaries: What are their full names and contact information?
• If you have minor children, who will be their guardian until they turn 18? What is important to you with regard to their education, health care, or recreational activities? Also, consider any disability care needs.
• Who do you want to manage your assets? If you have beneficiaries who couldn't handle the money themselves, who do you want to name as trustee?
• List any pets that will need care, who will care for them, and any estimated financial burden for the pet's future care.
• Who do you want to handle health care decisions if you become incapacitated and cannot speak for yourself? This could include everything from organ donation to whether you wish to be kept alive mechanically.
• What are your wishes for your funeral, and how much will it cost?

Legal Zoom has an estate planning checklist that explains some of the finer points of trusts, assets, and beneficiaries. Their site also has a wealth of resources to help you understand every aspect of estate planning from types of wills, legal jargon, unusual aspects of probate (the legal process where all assets and property are dispelled after a death), and more.

In addition to the list of names you come up with, it is a good rule of thumb to have at least one alternate person to fill those positions. Circumstances may change and your sibling or friend may not be in a position to fulfill the duty they agreed to—you want a backup in the event that happens.

Approaching an attorney to do your estate planning may seem like a waste of time or money, especially if you are young and healthy. But this is when you should start the process. “Setting it up in advance is much better because it gives you a chance to think ... you have time to designate the best person for each job,” Hess says.

There are online options like Legal Zoom, Rocket Lawyer, and NOLO that provide will-making services with state-specific legal document creation, as well as varying degrees of virtual legal advice to aid in the process. But there are also many advantages to seeing an attorney who specializes in wills and estates.

At the University of Tennessee, the Homer A. Jones, Jr. Wills Clinic is run by the university’s Law Department. It is staffed by law students with a faculty supervisor who is a licensed attorney and must approve all documents that are sent to clients. According to Hess, “They do all the work a licensed attorney who does estate planning would do. They write powers of attorney for health care and financial management, they write living wills, they write wills and trusts. They do some probate and they do conservatorships.”

Clinics like the one at UT are not anomalies; many universities have them. There are usually income guidelines, but services are free if you qualify. Most states also have legal aid societies where people can get free or reduced-cost help with estate planning from licensed attorneys if they cannot afford full fees.

The old system of filing everything away in a box under your bed has seen a lot of updates in recent years. Websites where you can store and organize all your health care directives, list of beneficiaries, power of attorney paperwork, wills, trusts, deeds, etc. are just a click away for your loved ones. Facilitating this process is one of the best gifts you can give a grieving person.

Below are some document storage programs that are encrypted for security and will provide peace of mind.

This is a comprehensive site that starts with a questionnaire to ascertain marital status, whether you have existing financial or health directives, and situation with any minor children. Once you complete the inventory, Everplans provides specific instruction on what to tackle first, as well as links to articles and helpful resources to demystify the process. It is customized and state-specific—this is important since each state’s laws are different.

There is a free version that provides access to articles and resources, but if you want to upload and store documents, there is an annual fee of $75 that includes a digital vault, access to your appointed deputies (loved ones you supply links to), and bank-level security of all documents.

With data security breaches more common than ever, you may be resistant to putting account numbers and personal information on the web, even if it is encrypted. The Torch does not ask for that type of information. Instead the site walks you through setting up a profile, completing a checklist of important documents to help flesh out what you might be missing, and creating notebooks based on considerations like real estate, pets, and health care.

There is no uploading of account information, passwords, or other sensitive documents. You just designate where your executor will find these items when needed. The site also prompts you to update and keep your information current so if your life circumstances change, you can be ready.

There is a free version where you can provide basic information, like if you have life insurance; create a profile; create a plan; and share your information. Or there is a one-time subscription of $199 that offers all of the basics plus access to information and plans shared with you, and the ability to update and manage tasks.

If you do find yourself in the situation where a loved one has passed without a will or any estate planning, the court will appoint a representative to manage the estate, direct assets to be sold, pay bills, and divide what’s left evenly among legal survivors. This means foster children, stepchildren, and domestic partners are not recognized as legal survivors, even if you wanted to provide for them and they have been a part of your life for years.

Hess advises, “Once you've gotten the funeral done, make a list of all of your loved one’s assets and debts as fast as you can. And you might want to talk to a lawyer about whether the estate needs to go through probate at all, because it may not. There is something called a small estate procedure, which allows you to do a simplified version of a probate proceeding.” This is predicated on agreement among family members about how inheritance will be divided, including any heirlooms.

Harmonious relations are not always the norm. Death is difficult. Sometimes grief can prompt feelings of resentment. Sometimes your grandmother’s tea set can spark argument as each sibling clings to the memories they associate with it. Sometimes words are said that tear families apart. Taking the steps to plan for death alleviates those possibilities for the ones you leave behind.

The day of my father’s funeral is still a blur. I remember people congregating outside because the church was over capacity. I remember standing at the podium delivering the eulogy I wrote for him. I remember musicians filling the air with Neil Young and Cat Stevens, their sounds of tribute. I want my family to have those moments, to eat one of those casseroles filling the refrigerator, and share the memories of camping trips, pillow fights, and cookie decorating, not the heartache of trying to figure out who should get my recipe collection.

Estate planning is not for you; it is for who you leave behind.