The Legalities of Mortality

By Robin Farmer | October 24th, 2017

Facing the emotional and practical aspects of death


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You do not have to be ill or old to die, but people of all ages tend to postpone thinking about how best to plan for matters relating to death and dying. However, anyone 18 and older – single or married, a parent or childless – can benefit from making such plans right away.

DOTTING YOUR LEGAL i’S

Important legal considerations include who makes medical decisions if you cannot and who gets your assets – bank accounts, real estate, personal possessions, life insurance and retirement accounts.

“Some of the saddest cases we’ve seen in the past involved young people in accidents who end up in comas and on life support for years,” said Paul G. Izzo, elder law attorney at ThompsonMcMullan, PC. “I encourage anyone over 18 to have an advance directive naming someone to make health-care decisions for them. That allows you to appoint somebody to make health decisions for you and express what kind of health care you want at the end of life.”

If a younger person has some assets, “It might be simpler to have accounts set up so they are payable on death to a parent or other loved one to avoid the need for a will,” Izzo said. “If anyone has more than a nominal amount of assets, it’s prudent to have a will. Otherwise state law of intestate succession will take over and decide who gets what, and this may not be what you would want.”

Married adults, parents and anyone else with assets should consider estate planning, said Edward D. Barnes, founder and president of Barnes & Diehl, PC. “No one ever knows when they are going to die. If you’ve got real estate or any assets of any particular good value and you want them to go to somebody when you die, frankly that’s when you should consider,” said Barnes.

Usually people start the process of creating an estate plan after significant changes occur, such as purchasing a home or having a child. Getting a will, advance directive or power of attorney is just a start, as these documents need regular reviews and updates as circumstances and relationships change.

Many clients redo their wills in their 50s and 60s, said Barnes, who recommends an annual review. Check in to make sure your executor “is still willing to do it and the trustee named in your will is still surviving, and that you still feel the same way about how you want your property to be distributed,” Barnes said. If families fall out, people may want to change their estate plan, or they may want to include someone who has been particularly good to them, he said.

The costs for estate plans depend on how much time it takes an attorney to craft it, legal experts say. “Some clients have their ducks in a row and know clearly what they want done [without] much agonizing decision-making,” said Izzo. “We always send a questionnaire to clients before coming in to streamline it. They often bring documents they previously signed or moved from out of state and we need to review and update them to comply with Virginia law.”

Another area to consider discussing with an attorney is your digital legacy, legal experts say.

“I’m doing an estate plan for a fellow right now who wants to make sure he gives proper instructions for his digital assets – that includes everything from his passwords to accounts, passwords for social media and notifications to go out on social media [after his demise]”, said Barnes.

Estate-planning packages can be purchased cheaper online than by working with an attorney one-on-one, but what is missing the most from online services is the conversation with the attorney about what you really want to accomplish with your estate plan as well as building in the ability to address contingencies, Izzo said.

“For example, you might say you want everything to pass to your spouse. You can do that and find those forms online, but what if your spouse predeceases you or is incapacitated when you die? Who do you want to manage the funds for your spouse? If your spouse can’t serve as executor, who do you want the backup to be?” Izzo said.

CROSSING YOUR HEART

Estate planning can provide peace of mind. Still, getting people to embrace the mindset to address the inevitable can be a process, said the Rev. Jeanne M. Pupke, senior minister at First Unitarian Universalist Church in Richmond. Last fall she held weekly classes on facing mortality.

“My concern was [people] preparing themselves for the interior life … just to say, ‘OK, we’re all going to die.’ Is it possible to bring any preparedness to that? Can we do it well or do we have to do it half-assed?” Pupke said. “Society today doesn’t do a lot to say, ‘You aren’t immortal and you will pass away.’ It sort of tries to hide the fact. And as a result, I have a lot of congregants who don’t want to think about their own mortality, as if superstitiously they think they might bring it on.”

Pupke suggested participants read and discuss books on the topic in book clubs, take time to reflect on how they live and what they value and make readjustments if needed, and imagine how their body will feel as it ages and eventually dies.

“If we can bring down the wall of fear a little bit, then … we can get people thinking about the stage of life they are in and think of how people can begin to live in ways to support each other through these life transitions,” said Pupke.


Robin Farmer, an award-winning journalist with more than 25 years’ experience, has worked as a staff writer for The Hartford Courant and the Richmond Times-Dispatch, where her work earned her a Knight-Wallace Fellowship at the University of Michigan, among other national honors. Farmer is working on her debut YA novel.

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