By Deb Miller - West Virginia Senior Legal Aid Contributor
Sam had just celebrated his 70th birthday and was thinking about how to avoid financial exploitation and retain control of his end of life matters. He felt he needed to make good choices soon.
Those choices included who would provide appropriate support for medical and financial decisions during the coming years and any special instructions or preferences for the time after his health began to fail. Plus, who would handle his estate after he died, and who would receive his property and everyday stuff?
Without protections locked in, next of kin could control and override Sam’s preferences.
Advance medical care directives and a financial power of attorney can help ensure that the people Sam trusts will have the authority to handle each situation.
As he discussed with his attorney, Sam’s will would only control probate property, not any non-probate property. What’s the difference?
Probate is the legal property transfer process occurring after death. Probate property consists of assets owned solely by Sam that have no after-death beneficiaries listed for the property or accounts (other than the default beneficiary of his estate). For that reason, a will is needed.
Non-probate property already has after-death beneficiaries listed for each, such as real estate with survivorship rights. Also, bank or stock accounts, insurance policies, annuities, retirement accounts, and other assets can have transfer on death beneficiaries.
After-death beneficiaries on accounts can generally be changed anytime if choices for future recipients change over time.
Sam knew that doing nothing would mean the intestacy laws of West Virginia would govern his estate. He didn’t want that.
Currently, state intestacy law covers what would have been probate property if there had been a will.
Priorities for intestacy distribution of estate funds and assets are first to the spouse; then, if no spouse, to children or other descendants; and lastly, to other relatives.
Non-probate assets would still be controlled by the beneficiary designations in an intestacy situation.
Notably absent from intestacy laws is a way to support nonprofit organizations or to provide for close friends or pets. A gift through a will or the after-death beneficiary on financial accounts are ways to do that.
End of life legal planning can be especially important for LGBTQ West Virginians.
Under legal concepts going back to our nation’s English predecessors, the law generally presumes family for intestacy purposes is only by blood or marriage. For many, including LGBTQ folks, their own preference for estate transfers can be for their family of choice.
To give any of those unrelated/chosen family members control of financial or medical matters requires signing appropriate powers of attorney and related written authorizations.
When someone is married but has no children, it’s easy to assume the end of life situation is covered. But after one spouse dies or becomes incapacitated, the survivor no longer has the backup needed. Planning while both are still able can ease this difficult change.
Sam also wanted to pre-plan his funeral and burial and even write his own obituary.
Planning ahead was the best path for ensuring a sense of peace for years to come.
For free legal assistance with a non-criminal matter, West Virginia residents age 60 or older may contact West Virginia Senior Legal Aid at 800-229-5068 or info@seniorlegalaid.org.
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