When an Elderly Parent Refuses to Write a Will

Posted on June 7th, 2017 by Oddo & Babat, P.C.

Most adults can benefit from having a will or some form of estate planning when it comes to ensuring their legacy. Without a will of some kind, it can be impossible for surviving family members and friends to know their final wishes. This can create a tremendous emotional burden for loved ones who are left behind. Unfortunately, when an elderly parent refuses to write a will, it can become a challenging roadblock.

There are several reasons why someone may not write a will. These are some of the most common explanations:

They have procrastinated about writing it.
They are not emotionally prepared to deal with writing a will.
They have succumbed unexpectedly to a life-threatening illness before having the opportunity to write a will.
They cannot afford to write a will.
They believe they do not have sufficient assets to justify writing a will.

Unfortunately, without a will it will be difficult if not impossible to know their final wishes, including the distribution of their assets which will then have to go through the probate process. However, convincing an aging parent to do so is not as easy as it sounds in every situation.

Begin Small

Sometimes taking small steps is best when dealing with elderly individuals, especially a parent.

Designating a power of attorney is an inexpensive step that can be accomplished quickly.
Combining a power of attorney assignment with a living will can be a good next step. Power of attorney can also be assigned separately for fiduciary responsibilities and medical directives. Very often the power of attorney is assigned to a close family member or friend who will be part of the potential inheritance group.

Make an Inventory of Assets and Liabilities

A durable power of attorney will allow the individual the legal right to represent the parent in any of their personal affairs, which also means the power of attorney holder can investigate all financial issues of the parent.

The issue of dying intestate is that assets are subject to tax and divided according to state law.
Establishing a will means that assets can be placed in irrevocable trusts that effectively transfer ownership of those assets to the inheritance pool. This means the assets are not considered property of the elder parent and therefore will not be taxed upon their death.
Allocation of physical property can also avoid probate and taxation if they are transferred prior to death as well.

Consult with an Estate Attorney

Working with an estate lawyer Sacramento trusts can be advantageous when explaining to an elderly parent what the outcome of dying without a will can be. In addition, an attorney can advise on how to move forward legally with drafting a will after a power of attorney is assigned. Allocation of assets following the death of an elderly family member can be a highly-contested legal issue when certain individuals believe they stand to inherit property but foul play was involved. An estate attorney can work with the elderly parent and an immediate family member to minimize the risk of a contested will.

Thanks to our friends and contributors from Yee Law Group for their insight into estate planning and elder law.

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