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Estate planning: What you need to know

Q. A military attorney prepared a basic will, health care proxy and power of attorney for me, but I’m not exactly sure what each of these documents does for me. Can you explain the purpose of each document?

A. A will is a legal document that, among other things, tells the world who receives property owned by a person and titled in his or her name alone when the person dies. The person named in the will who is given the responsibility to see that the decedent’s wishes are carried out is called an executor, because he or she executes the person’s last wishes concerning disposition of the person’s property.

It should be noted that a will does not operate to dispose of property that is not held in a person’s name alone, such as jointly owned property, life insurance policies or individual retirement accounts that name a beneficiary. A will can also be used to designate a guardian for minor children who survive the decedent.

A health care proxy is a legal document wherein a person designates someone to make medical decisions on the person’s behalf if a situation arises in which the person is unable to make such decisions on their own, such as if the person is unconscious or in a coma.

A power of attorney is a legal document by which a person appoints someone as their agent to do, basically, any act that the person could do themselves, other than making health care decisions.

If you have questions relating to the meaning of specific provisions of any of these documents, consult with a privately retained attorney to give you more specific advice as to the meaning of anything contained in your documents, to make sure that circumstances that are unique to your situation have been addressed.

Q. My husband is serving in the military and tells me that since the government has provided estate planning documents for him, he does not have to give further thought or do anything else with regard to planning needs. I am not so sure I agree. What’s your opinion?

A. I think that your husband’s thought process, although understandable to a certain extent, is wrong. It is easy to think that once something has been taken care of, it is taken care of permanently, but this is seldom the case.

This is especially true when it comes to estate planning documents, which should be reviewed at least every few years and immediately upon the occurrence of a significant change in one’s circumstances, either personal or financial.

A will prepared before someone gets married should be revised shortly after the ceremony, and further revised if the couple has a child. A person’s choice of who should act as an executor, trustee or guardian of minor children may change after the passage of time, as a result of a change in the previously appointed person’s circumstances or because of a change in how you view that person.

The same is true with respect to health care proxies and powers of attorney. Someone who previously could be trusted and relied upon to make crucial health care decisions or to act as your agent may no longer be physically or mentally able to undertake such responsibilities, or may no longer be trusted to make the proper choice.

Furthermore, as your personal financial situation changes, hopefully for the better, estate tax savings techniques should also be considered, if appropriate. You and your husband should review these documents with your attorney periodically to make sure that they still fulfill your needs and accomplish your goals.

Q. My wife and I are in the middle of a messy divorce proceeding. The estate planning documents that were furnished to me appoint my wife as power of attorney, health care agent, executor and sole beneficiary. Should I wait until after my divorce is final to change these documents, or should I do so now?

A. You would be well advised to consult with your attorney as soon as possible to have all the existing documents revoked — unless you are comfortable with having your wife being the one to decide whether to “pull the plug” if you are unable to communicate your desires yourself. Or unless you do not care whether your wife still has access to all property held in your name alone and would inherit everything you own in the event of your untimely death.

In most states, one spouse cannot totally disinherit the other, but even if you were to die before the divorce became final and your wife were to elect against your will to take her statutory share of the estate, at least she would get only a fraction of what she would receive if you were to die before the divorce is final.

Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates, a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytiumes.com.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.