The focus of estate planning and probate is on the individual. Whether you need an attorney to help draft a will, create a family trust, or file a probate action in the probate courts. Estate attorneys work with you personally to find the best solution to your estate planning and probate needs. We are committed to providing you with only the highest quality legal services available.
No two lives are exactly the same, and your legal needs are as individual as you are. Pre-printed or free downloadable wills or trust forms cannot replace competent legal advice. Estate planning documents that work well in one situation could be disastrous in other circumstances. That’s why your estate planning attorneys will customize an estate plan that is tailored to fit your life, your needs, and your goals. Contact your estate attorney to set up an initial consultation.
What is a will?
A will is perhaps the most fundamental estate planning document. A will allows you to designate how your property will be distributed after your death. If you die without a will, you are considered to have died “intestate,” and decisions about who will inherit your property will be made according to state law through the probate process, even if you have expressed different wishes during your life.
Do I need a will?
A will can also allow you to make provisions for the care and custody of any minor children you leave behind. If you have minor children, you will want to designate both a guardian and a trustee for your children. The guardian will normally have custody of the children and will make decisions regarding their care, education, health treatment, etc. The trustee is the person designated to manage financial matters relating to the children and to hold any property on their behalf until they reach a certain age. You can designate the same person to be both guardian and trustee, or you can have a separate person serve in each position. There are advantages and disadvantages to both approaches.
A will typically will not avoid the necessity of probate. While a will does do away with the problems associated with intestacy proceedings, your estate may still have to go through probate so that a personal representative can be appointed and letters testamentary can be issued. The probate process can be required so that the personal representative can sell or dispose of a home or other real property and otherwise distribute the estate to your heirs. If you are interested in avoiding probate, other estate planning tools such as a revocable living trust may be appropriate.
What is a “living” trust?
A living trust written in combination with a last will and testament can form the foundation of the estate planning process. A living trust is not a substitute for a will. But together, these two important estate planning documents can help avoid probate and help ensure that your estate will be distributed according to your wishes and without unnecessary complications. An estate planning attorney can help you begin the process of creating a comprehensive estate plan, including a living trust. Look for an attorney that works personally with clients to create personalized estate planning solutions.
The terms “living trust” and “living will” are often confused. But the two documents are serve vastly different purposes. A living will relates to end-of-life health care decisions. A living trust (also called an “inter vivos trust”), on the other hand, is a trust created during the trustor’s or grantor’s lifetime. Under the law, a living trust can be used to manage and hold property during the grantor’s lifetime and manage and distribute property after the grantor’s death.
A testamentary trust can also be used to distribute or manage property following a person’s death. But unlike a living trust, a testamentary trust is created by a last will and testament and only becomes effective following the death of the testator.
Benefits of a Living Trust
One of the chief benefits of a living trust is its ability to help avoid probate. While there are exceptional circumstances that may sometimes require a probate action, in many cases, a well-drafted and properly funded living trust can help you avoid the need for probate. Probate can be time-consuming and expensive, in some cases costing even more than what it would have cost to create a living trust. In the event that you are unable to manage your own affairs or become incapacitated during your lifetime, a living trust may also help avoid the need for a guardianship.
Like a last will and testament, a living trust can also provide detailed instructions for your assets’ distribution or management following your death. Without either a testamentary trust or a living trust, the law requires the immediate distribution of your estate upon your death. In some cases, this is fine. But if you want to delay distribution, have the distribution occur in stages, or have the distribution managed by another person, then a living trust or testamentary trust is required. A delayed or managed distribution can be important in cases where your children are minors, are not yet of an appropriate age to manage a substantial inheritance, or otherwise cannot manage substantial assets. A trust provides you with the flexibility to handle the distribution of assets in a way that is appropriate to your circumstances.
Estate Planning, Wills, and Trusts Attorney
The best estate plans help you prepare for the future in a way that will protect what matters most to you. Whether that means ensuring that your children are cared for, preserving your estate to benefit your heirs, or leaving a legacy of charitable giving. You need an estate attorney for creating a custom estate plan designed to meet your individual and family goals.
A basic estate plan should include, at a minimum, a last will and testament (will). But most people will benefit from additional estate planning tools that can accomplish much more than what a will alone can do. We consult with you to help uncover situations you may not have anticipated, and options you may not realize are available. Contact an estate attorney today to learn more about wills, trusts, and powers of attorney in your area and how a customized estate plan can benefit you and your loved ones.
Durable Power of Attorney
Creating a durable power of attorney is an important part of the estate planning process. But because a durable power of attorney ceases to be effective immediately upon your death, it does not serve as a substitute for a last will and testament or living trust. To find out more about estate planning and how a durable power of attorney can be a part of your personalized estate plan, contact an estate planning attorney for an initial consultation.
The Basics – Powers of Attorney
A power of attorney is a written document executed by you (the “principal”) that grants authority to another person (the “attorney-in-fact” or “agent”) to act on your behalf. The authority of the agent is determined by the language of the document. A power of attorney can be written broadly, giving authority to the agent to do almost anything that the principal could do. Or power of attorney can be written narrowly to give the agent authority to perform only certain specified acts. The principal may be bound by the actions of the agent in the same manner as if the principal had taken the actions himself or herself.
Death or Incapacity – Ordinary v. Durable Powers of Attorney
An ordinary power of attorney becomes void if the principal becomes incapacitated. However, the law makes provisions for a “durable” power of attorney that remains effective in the event that the principal becomes incapacitated. However, any power of attorney, even a durable power of attorney, is void upon the principal’s death. Therefore, a durable power of attorney should not be considered a substitute for a will and living trust. Nor can a power of attorney be used to avoid probate.
Benefits of Executing a Durable Power of Attorney
In most situations, most people would prefer to act on their own behalf – both in ordinary daily decisions and activities and in more significant decisions. But situations may arise when you are either unable to decide or act for yourself or may be unavailable to execute decisions or sign documents on your own behalf. Traveling out-of-state travel or traveling to another country may make it impossible for you to sign time-sensitive documents yourself. By executing a power of attorney beforehand, you make it possible for another person to act on your behalf. If you are incapacitated by illness or accident, you may temporarily (or permanently) be unable to manage your own affairs. A durable power of attorney properly executed before your incapacity may enable you to avoid the necessity of going through a guardianship proceeding in the court system.
Risks in Executing a Power of Attorney
When executing a power of attorney, it is important to keep in mind that you will be bound by the actions of your agent. The greater the breadth of authority granted under a power of attorney, the greater the risk that an unscrupulous agent may use a power of attorney in a way that adversely affects your interest. This does not mean that you should not execute a power of attorney. Instead, you should take great care in selecting an agent to act on your behalf and give careful consideration to the extent of authority you will give your agent under your power of attorney.
Picking an Agent for a Power of Attorney
Choosing an agent to act under your power of attorney is an important decision. Because your agent’s actions will bind you, your agent must be a person you consider to be completely trustworthy. For many people, a spouse, adult child, or other trusted family member is a good choice for an agent to act under a durable power of attorney.
How to Revoke a Power of Attorney
Under the law, a durable power of attorney can be terminated in several ways. It may contain an expiration date within the document, after which a power of attorney will be void. If the document contains no termination date, a power of attorney may be revoked at any time by giving notice of the revocation to the agent. It is best to notice the agent in writing and provide copies of the revocation notice to any persons or entities that may have been given a copy of a power of attorney. If possible, it is also a good idea to collect any copies of a power of attorney and destroy them along with the original power of attorney document.
What is a guardianship?
The following are brief answers to some common questions regarding adult guardianships. These answers are not intended to be a complete statement of the law regarding guardianships. If you are involved or could potentially be involved in a guardianship proceeding, please contact an attorney for advice regarding your specific circumstances.
Guardianship is a legal relationship that authorizes one person (the guardian) to make decisions on behalf of another person (the ward) who is incapacitated.
What does it mean for a person to be “incapacitated”?
For purposes of the law governing guardianships, a person is considered incapacitated if the person lacks sufficient understanding or capacity to make or communicate responsible decisions because of mental illness, mental deficiency, physical illness or disability, chronic drug use, and chronic intoxication, or other cause.
What is the process for the court appointment of a guardian?
A petition for the appointment of a guardian may be filed with the court by the incapacitated person or by any person interested in the incapacitated person’s welfare. The court may require an examination by a physician appointed by the court. The court may also appoint a “visitor” to interview both the allegedly incapacitated person and the person seeking appointment as guardian, to visit the place where the incapacitated person is currently living, and to visit the place where it is proposed the incapacitated person will reside. The visitor will submit a written report to the court. The person who is alleged to be incapacitated is entitled to be represented by an attorney and to a trial by jury. At trial, the allegedly incapacitated person is entitled to present evidence and to cross-examine any witnesses that may testify.
Is a trial always necessary?
No, suppose both the proposed guardian and ward agree that guardianship is appropriate. In that case, the court may enter an order of guardianship without all of the formal proceedings involved in a trial. However, these protections are available to the allegedly incapacitated person if they dispute the necessity of a guardianship.
What decisions can the guardian make for the ward?
This depends on whether the court has ordered a limited guardianship or a full guardianship. The law creates a preference for limited guardianships, which provide the guardian only with the authority to make specific decisions authorized by the court. If the court determines that full guardianship is appropriate, the guardian is authorized to make nearly all decisions for the ward.
Who will be appointed as a guardian?
The law gives priority to a person who has been nominated by the incapacitated person to serve as a guardian. If no person has been nominated, the courts give priority in the following order: spouse of the incapacitated person; adult child of the incapacitated person; parent of the incapacitated person; any relative of the incapacitated person with whom he has resided for six months before the filing of the petition; a person nominated by the person who is caring for him or paying benefits for him; or a specialized care professional.
Can a guardianship be avoided with appropriate estate planning?
Yes, the need for guardianship can often be avoided through forward-thinking estate planning methods. Using estate planning tools that may provide a durable power of attorney, advance health care directive, and a revocable living trust, a person may designate another person who will have the authority to make decisions or manage the person’s affairs in case of incapacity. But these estate planning steps must be taken before the person becomes incapacitated. Creating an estate plan that will protect you in the event of incompetence or incapacity will typically be much less expensive than the cost of obtaining a guardianship. It also avoids the necessity of presenting sensitive personal information in a public courtroom setting.
Why you need a probate attorney
Avoiding probate is an important goal in many estate plans. Probate proceedings can be time-consuming at best. If handled poorly, the probate process can be costly, can be the source of family contention, and can deplete the estate and undermine the deceased’s wishes.
A well-made estate plan will usually avoid the probate process entirely, but not always. Certain circumstances may require filing a probate action, even in the best-planned estates. The necessity of transferring real property, a contested will, ongoing litigation involving a deceased person, and other sometimes unexpected circumstances may result in a probate action being necessary. Probate courts are also responsible for certain matters involving minors and incapacitated adults, such as guardianship or conservatorships.
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