Why you need all of these legal documents
Dear Jonathan: My husband died six months ago. We didn’t have much but everything we had we held in joint names. Consequently, upon the advice of a family member some time ago, we never bothered to prepare wills because we were told that the survivor of the two of us would own everything so there was no need to have a will. Now that my husband has passed away, do you recommend that I now have a will? Also, I have received several telephone calls and letters from two different credit card companies threatening to turn me over to collection if I don’t pay several thousand dollars in credit card charges my husband incurred prior to his passing. Unfortunately, my husband was a serial spender and left me with a mountain of debt. Am I responsible for his credit card balances even though the cards are only in my husband’s name?
Jonathan Says: I am sorry for your loss. To answer your first question, yes you should have a last will and testament and you should also consider having several other estate planning documents which I will discuss below. As you probably know, the purpose of a last will and testament is to allow you to name the beneficiaries of your estate upon your death. If you fail to have a will in place at the time of your death, your assets will pass according to state law which may not be consistent with how you want your estate to be distributed. Consequently, I encourage you to prepare a will so that you, and not the state, control who is to receive your estate upon your death.
In addition to a last will and testament, you should also have a financial durable power of attorney and a health care power of attorney. These power of attorneys allow you to name someone to act on your behalf should you become disabled and unable to handle your financial matters or health care decision making. Without having these documents in place, should you become disabled, someone would have to petition the probate court in your county to have a guardian and conservator appointed on your behalf. This takes time, money and necessitates involving the probate court, all of which could be avoided by having prepared these documents ahead of time.
Also, along with the health care power of attorney, if you don’t want to be kept alive on life support in the event you suffer a catastrophic illness, you can prepare an advance directive or living will wherein you, and not someone else, decides what type of medical treatment you want to receive in that event. If, for example, you don’t want to be kept alive on life support in the event you are declared to be brain dead, you can indicate that in an advanced directive or living will.
Finally, you may also want to consider setting up a trust for the purpose of holding your assets. At the time of your death, any assets titled in your name alone will need to be probated and that is where the trust comes in. If you set up a trust while you are alive and then retitle otherwise probatable assets to your trust, then upon your death, since those assets are not titled in your name anymore, they will not need to go through probate. Besides avoiding probate, a trust can benefit you in other ways, such as providing for minor beneficiaries, and having the trustee manage the minor beneficiaries’ respective shares of the trust assets until each of those beneficiaries reach whatever age you designate in the trust document.
Regarding your credit card question, if the credit cards were only in your husband’s name, then you should not be legally responsible for those credit card balances. However, even though you may not be legally responsible for that debt, you may be morally responsible if those cards were used to make purchases from which you benefited, which, of course, is something that you will have to decide.
I encourage you to meet with an estate planning attorney in your area to further discuss the benefits of engaging in estate planning and who can go into more detail regarding the documents I discussed herein. I would also consult with this or another attorney about your liability regarding your husband’s credit card debt, and if necessary, he or she can intervene on your behalf with the credit card companies. I wish you the best of luck in your endeavors.
Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., in Grand Rapids, Mich.