Your will is a legally-binding statement directing who will receive your property at your death. It also appoints a legal representative to carry out your wishes. However, the will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate.

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. Medical science has created many miracles, among them the technology to keep patients alive longer, sometimes indefinitely. As a result of many well-publicized "right to die" cases, states have made it possible for individuals to give detailed instructions regarding the kind of care they would like to receive should they become terminally ill or are in a permanently unconscious state. These instructions fall under the general category of "health care decision making." Depending on the state in which you live, this may take the form of a health care proxy, a medical directive, or a living will.

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up a living will. Like a health care proxy, a living will takes effect only upon a person's incapacity. Also, a living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.

A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.

Many people try to avoid probate and the need for a will by holding all of their property jointly with their children. This can work, but often people spend unnecessary effort trying to make sure all the joint accounts remain equally distributed among their children. These efforts can be defeated by a long-term illness of the parent or the death of a child. A will can be a much simpler means of effecting one's wishes about how assets should be distributed.

The second reason to have a will is to make the administration of your estate run smoothly. Often the probate process can be completed more quickly and at less expense to your estate if there is a will. With a clear expression of your wishes, there are unlikely to be any costly, time-consuming disputes over who gets what.

Third, only with a will can you choose the person to administer your estate and distribute it according to your instructions. This person is called your "executor" (or "executrix" if you appoint a woman) or "personal representative," depending on your state's statute. If you do not have a will naming him or her, the court will make the choice for you. Usually the court appoints the first person to ask for the post, whoever that may be.

Fourth, for larger estates, a well-planned will can help reduce estate taxes.

Fifth, and most important, through a will you can appoint who will take your place as guardian of your minor children should both you and their other parent both pass away.

Filling out a worksheet will help you make decisions about what to put in your will. (For Elder Law Answers'  worksheet,
click here  (Opens in a new browser window, you can print (3 pages) from within the browser.) Bring it and any additional notes to your lawyer and he or she will be able to efficiently prepare a will that meets your needs and desires. Use the worksheet provided under the Resources tab above.

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