| Dear Mr. Premack: My father is
married for the second time, and both of them are in poor health. I am
my father's only child, and his wife has only one child. They don't seem
to hear me when I explain the importance of having Wills, which neither
of them has now. Can you explain what happens when a person dies without
a Will? Also, what is the difference between a "Will" and a
"Living Will?" Finally, my stepmother wants to be buried with
my father, but her son insists on cremation. Can a Will help in that
situation? - M.S.P.
I've received several questions lately about Wills, but yours adds
some interesting extras. Dying without a Will is called being
"intestate." In that case, a set of laws contained in the
Probate Code define who-gets-what. In this situation, the law would
require several things:
First, when either your father or his wife die, that person's estate
must be brought before a Judge. While some very small estates may be
able to use other means, the legal process in this case could be quite
complex, time consuming and unnecessarily expensive. It would involve at
least two lawyers. The court would determine the identity of the heirs
and what portion of the estate each heir is to receive. If the estate
owes any debts, it may also have to go through a court-supervised
administration.
All this legal procedure takes time and costs money. It can be
avoided or trimmed to a bare minimum with proper Wills.
Second, since each parent has a child from a prior marriage, that
child has a valid claim to much of the deceased parent's estate. If your
father and his wife choose not to make Wills, they are essentially
"disinheriting" each other. They should ask. "If I die,
can my spouse survive without my financial assistance?" If the
answer is "no," then remaining intestate is the wrong choice.
You ask the difference between a "Will" and a "Living
Will." A "Will" disposes of assets upon a person's death
and contains a plan for settling their final affairs. A "Living
Will" is a medical directive that artificial life support should be
withheld or withdrawn if a patient is terminally ill. The title
"Living Will" has retained popular use, but the correct (and
less confusing) name for this legal document is a "Directive to
Physicians."
Finally, you ask about funeral instructions. Your stepmother has the
right to have her remains handled according to her wishes. Many people
elect to use their Will to communicate burial instructions, and those
instructions are legally binding. However, at times a Will won't be read
until after the funeral, which makes the instructions superfluous.
Perhaps a better approach is to either 1) prearrange her burial with
a funeral home, or 2) have her sign a Power of Attorney under section
711.002 of the Texas Health and Safety Code. This provision allows her
to appoint an Agent with power to arrange her burial. No one would be
authorized to contradict that agent's instructions. She could thereby
avoid cremation, and be buried with her husband as she wishes. |
