Writing a Will

A majority of people in the United States and Canada neglect to write a will and many have yet to write a living will (or what's called an advance health care directive). These two documents, when properly executed, will protect both real and personal property (estate) and guide any necessary medical decisions made on our behalf should we become unable to communicate.

"Approximately 55% of American adults do not have a will or other estate plan in place," declares A. L. Kennedy, in the online article, "Statistics on Last Wills & Testaments". He goes on to say, "Among minorities, the numbers are higher than in the general population: 68 percent of black adults and 74 percent of Hispanic adults do not have one." In late 2011, the Canadian law firm, Hull & Hull LLP noted in the blog post, "Survey: Many Canadian Boomer Wills Need Updating," that "while the overwhelming majority of Canadian boomers (85%) had some basic estate plan in place, almost half of them have not updated them in the last ten years." Of the 15% of Canadian boomers (defined in the study as someone aged 45 or older with investable assets worth $500,000 or more) who have not drafted a will cite a lack of time as the reason.

Why People Don't Write a Will

Commonly, people don't know where to begin because they're unsure where to find information. There's also a general reluctance to write a will simply because it involves admitting that death is inevitable.

What about Living Wills?

Jennifer Kerr, in the 2011 Huffington Post online article, "Most Boomers Don't Have Living Wills," writes "An Associated Press-LifeGoesStrong.com poll found that 64 percent of boomers (those post-war babies born between 1946 and 1964)...say they don't have a health care proxy or living will."

Why? "Many baby boomers don't have end-of-life legal documents such as a living will – and some say it's because they feel healthy and young in their middle-age years and don't need to dwell on death."

Reasons to Write a Will

Writing a living will (sometimes called a health care proxy, health care power of attorney, or advance health care directive) to pick someone you trust to make medical care-related decisions when you're unable to do so makes sense. Yet, only 42% of Americans have a living will. According to Gary Langer, author of the ABC News online article, "Poll: Americans Not Planning for the Future", 74% of Americans have life insurance, but only 50% have drafted a will protecting their estate. He says the number of people who have a living will has grown but the numbers who have a valid will have held steady. According to the Hull & Hull, among the 1002 Canadian Boomers polled by Ledger Marketing, the top three reasons for writing a will are to:

• Ensure assets are distributed as wished (36%)
• Avoid family problems following the death (34%)
• Protect and look after family members (28%)

How to Write a Will

"Writing a will can be as simple as typing out how you want your assets to be transferred to loved ones or charitable organizations after your death," declares the author of the USA.gov article, "Writing a Will". Despite this assurance, they do advise seeking legal advice because of the common complexity of estate disposition laws and processes.

They are also very clear about the rules regarding the act of writing a will. In most states/provinces, you must be at least 18 years old and in sound mental capacity to draft a valid will. The document must clearly state that it is your will and you must name an executor (person responsible for settling your estate after your death). Finally, in order to be valid, you must sign your will in the presence of two or more witnesses.

In the 2008 AARP online article, "The Whys and Hows of Wills," the authors remind their audience of one very important thing: if you die without a will, "a probate court will appoint an administrator to direct and manage your estate," and this person will be guided in his or her decisions not by your wishes or intentions but by local estate settlement law(s). "Don't be tempted to write your own will. To be valid, a will must comply strictly with the law in your state. The law might require that a will contain specific language, be signed in a particular way, and have a certain number of witnesses." Not all regions even recognize homemade or handwritten wills. "Even in these states, your DIY will may not stand up in court if it contains language that could be easily misunderstood. If this happens, the state would distribute your property as if you did not have a will."

Once your will is complete, review it periodically to make any necessary changes. This is especially important if:

• The value of any asset(s) has changed
• Your social status changes (through marriage, divorce, or separation)
• The appointed executor becomes unable, or unwilling, to perform his or her duties
• You leave the area and move to another state/province
• One of your beneficiaries dies
• Inheritance laws in your state or province change

How to Write a Living Will

In the online article, "How to Write a Living Will", Nolo offers these guidelines on how to write a living will. You can be as detailed in your instructions as you need to be. In fact, the advance health care directive specific to your state will ask for your instructions related to life-prolonging medical care (such as blood transfusions, CPR, or the use of a respirator); the administration of food and water when permanently unconscious; and palliative (pain-relieving) care when you're terminally ill (and have forgone life-prolonging treatment). These can be challenging decisions to make especially if your family is strongly opinionated about any of these issues.

Fortunately, it's fairly easy to obtain a living will form specific to your region and you don't need to hire an attorney to take care of writing a living will on your behalf. You can obtain your state's version of the document at: your local senior center, hospitals, your family physician's office, or online at the National Hospice and Palliative Care Organization. Please note that you will need to sign your living will and may need to do so in front of witnesses and/or in the presence of a notary public.

Canadians who wish to complete a living will should consult the website of the Canadian Hospice and Palliative Care Association, or the University of Ottawa webpage, "Living Wills in Canada" for information on how to write a living will.

We're Not Attorneys

We're funeral professionals and cremation specialists. We're not allowed to give you legal advice but we can urge you to take this opportunity to protect yourself, your physical assets, and personal medical integrity by writing a will and learning how to write a living will. Should you have questions about advance health care directives, or need a referral to a local attorney to assist you in drafting either of these essential documents, please call us at 905-356-3550. We will be privileged to assist you.