Ethan R. Okura
Hawai‘i Herald Columnist
There are at least five names for legal documents that include the word “will:” will, last will and testament, pour-over will, living will and ethical will. I will explain each of them in this column.
A will is a legal document that states who gets what after you are gone. It also names your “personal representative”— the person who will handle your affairs. The personal representative takes the will to an estate planning or probate attorney who, in turn, presents it to the court for probate. If you have minor children, a will can also state who will be the guardian of your children if you should die before they reach adulthood. The person making the will is called the “testator,” and must be 18 years of age or older and of sound mind to make a valid will. Also, a will must be signed by two adults who witnessed the testator signing the will or witnessed the testator acknowledging the will.
A holographic will is a handwritten will that might be valid even if it’s not witnessed, as long as the signature and the document are in the testator’s handwriting. We generally do not recommend using a holographic will as it is much more difficult to prove that it is valid compared to a typed or printed will with witness signatures. Also, most laypersons don’t think of all of the things that should be included in their will. There are some exceptions such as a dire emergency, as in a war at the battlefront or a remote hiking accident that is likely to result in death with no one there to witness the will.
A last will and testament is the same thing as a regular will, except the name of the document is different.
A pour-over will is used when you have a trust. In such a case, it is usually the trust, not the will, which states who inherits what. When you transfer real estate or bank accounts to the trust, the trust states who will inherit those assets. However, if you have any real estate, bank accounts or other assets, which you did not transfer to the trust, the pour-over will put those assets into your trust after you die so that the trust’s instructions will be followed. The pour-over will is essentially a back-up. If all of your assets are properly titled in your trust or have beneficiaries named, then the pour-over will is not used upon your death.
A living will is very different from a regular will. A living will has nothing to do with your assets: It is a health care document. The living will gives instructions regarding your medical care when you can no longer speak. If you fall into a coma or have serious dementia and the doctors say to your loved ones that there is no reasonable chance for your recovery, then the living will states your instructions for you. You can choose to say in your living will that you do not want to be kept alive with life support machines. You can say that you do not want tube feeding (when you can no longer eat normally). Or, you can say that you want to be kept alive as long as possible, no matter what. You can also say that you want your spouse or one of your children to decide whether they should discontinue life support and let you go naturally. The living will gives life and death instructions — and we should all have one.
The living will document used to be called “living will” or “declaration of living will.” Sometimes people still refer to it this way, but back in July 1999, a new health care law went into effect in Hawai‘i. It included a document called the “advance health care directive.” The newer advance health care directive document has four parts. The first part is called “durable power of attorney for health care decisions.” It lets you determine who will have the power to make medical decisions for you when you can no longer make them yourself. The second part is the living will, although it is no longer called a “living will.” It is now called “part 2 instructions for health care” and takes the place of what used to be a separate document called “declaration of living will.” Part 3 is “donation of organs at death,” and part 4 is regarding your “primary physician.”
The last kind of will is the ethical will. Most people have not heard of it, although it is becoming increasingly popular. An ethical will is a message you write to your children or other descendants or loved ones. It expresses your values, what you believe to be important in life. Do you believe strongly in education? Hard work? Service to your church? Honesty? The Democratic Party? With the ethical will, you can explain what is most important to you and why, with the hope that your children, grandchildren or other loved ones will understand what motivated you in your life. In some ways, perhaps the ethical will is even more important than a regular will.
© OKURA & ASSOCIATES, 2021
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Ethan R. Okura received his JD from Columbia University in 2002. He specializes in Estate Planning to protect assets from nursing-home costs, probate, estate taxes and creditors.
This column is for general information only and is not tax or legal advice. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate-planning specialist.