Wills, Probate and Estate Planning
More than 50% of Americans will die without having made a valid will or an advance directive for health care (living will). Yes, it’s true, “You cannot take it with you.”, but since you can’t, wouldn’t you want to be the person who determines who gets what, when, and how much of your property (estate) when you die? Wouldn’t you want to be the person who decides who will care for your minor children upon your death? Wouldn’t you want to be the person who decides who should handle your financial affairs and make care giving decisions on your behalf in the event of mental and/or physical incapacity? And, when you are at the end of your life’s journey, wouldn’t you want to be the person who decides how much medical care you want or do not want?
If your answer to any of these questions is yes, then you will need an estate plan. Your estate plan can be simple or complex depending upon your needs and circumstances. But don’t wait for a life changing event, such as marriage, divorce, or the death or incapacity of a loved one, to begin thinking about estate planning.
Estate planning is not just for the elderly or wealthy. It’s for those of modest means, small estates, young families, and single adults as well. An estate plan will give you peace of mind, even though “you can’t take it with you”.
Medical Power of Attorney. A Medical Power of Attorney is a legal document that designates another person called a patient advocate to make health care decisions for you when you are unable to do so.
Revocable Living Trust. A revocable living trust is a written agreement that allows you, as trustee, to manage your estate during your lifetime and provide for distribution of your property upon your death. As trustee of your trust, you will have complete control of your assets, free to do whatever you want with them. Because your trust is “revocable”, as long as you are legally competent, you can at any time revoke or change your trust. Upon your death, the trust assets will be distributed to the beneficiaries you named in the trust in the manner you have chosen.
Some Frequently Asked Questions
1.Do I need a will if I own property jointly with my spouse?
If you and your spouse own property jointly, or your spouse is the designated beneficiary of your investment accounts or life insurance, your spouse will become the sole owner of the property upon your death and the property is not subject to probate. If all of your property is held jointly, technically no will is necessary. But your will can provide for guardianship of minor children, provide for contingencies such as a common disaster, and give you piece of mind.
2.What is “probate”?
Probate is a court process that oversees the distribution of your assets according to terms of your will upon your death, or according to state law if you die without a will.
3.Why do I need a general power of attorney?
A general power of attorney not only allows you to appoint someone to represent you when you are unable to do so, but it also allows you to appoint a conservator and/or guardian to act in your behalf in the event of your incapacity.
4.Why do I need a medical power of attorney?
A medical power of attorney allows you to declare to your family, loved ones and health care providers what life sustaining measures you want or do not want during your final illness. You do not want to put the burden of making this decision on others without letting them know what care you want during this critical time.
5. Why do I need a revocable living trust?
A properly drawn and funded revocable living trust can eliminate or reduce the cost of probate, ensure privacy, avoid extensive delays in the administration of your estate and, in large estates, minimize taxes. A trust is not for everyone, but your attorney can explain the pros and cons in adding this tool to your estate planning toolbox.
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The following are some important estate planning tools:
Last Will and Testament. A will is a formal declaration by you of what you want to happen to your property upon your death. If you die owning property at the time of your death and you do not have a valid will, the state where you are domiciled will decide who gets your property and how much.
General Power of Attorney. A General Power of Attorney is a legal document that appoints and authorizes another person called an “agent” to act on your behalf. If the power of attorney is “durable” the power to act continues even if you become physically or mentally incapacitated.