Frequently Asked Questions
You need to decide what motivates your visit with the attorney. One of the most common reasons people visit an estate planning attorney is to draft a Will, but you may also be curious about creating a Revocable Living Trust or drafting Powers of Attorney. Since a Will lists what assets go to which beneficiary, you need to have an idea of what property (real or personal) you own and to whom you want to receive the property.
Trusts, in general, are legal entities with three parties: Creator, Manager (Trustee), and Beneficiaries. With most Revocable Living Trusts, you initially wear all three hats. Trusts are advantageous as an avenue to avoid probate, as well as to maintain a veil of privacy of your assets from the public’s eye.
A Will is an instruction manual to the court in how you would like to have your belongings distributed to whom and in what amount. It also determines who will carry out your wishes, also known as the Executor/Executrix.
A Living Will (or Health Care Directive) is not a legally binding document, but it does provide health-care professionals (and your loved ones) with instructions on how YOU would like your end-of-life treatment and care, once you can no longer physically communicate those interests. This document should be kept by those loved ones you trust to make end-of-life decisions on your behalf should you become incapacitated, as well as your physician.
A Dependent Administrator is an estate’s agent tasked with distributing an estate’s assets to the rightful beneficiaries and heirs with court supervision.
An Independent Administrator is an estate’s agent tasked with distributing an estate’s assets to the rightful beneficiaries and heirs without court supervision. Naming an Independent Administrator can greatly streamline the Probate process, potentially closing an estate months (or possibly years) sooner than a Dependent Administration.
The Power of Attorney (“POA”) grants another person the legal authority to make important business decisions, as well as other matters, in your place. The specific powers granted to your agent will be decided by you in the Power of Attorney document.
Durable Powers of Attorney are designed to make it possible for an agent to manage your financial affairs. For instance, your agent can be given the power to buy and sell real estate, write checks on your checking account, and sign your tax returns. The powers of the agent can be made effective immediately, or they can be “springing” which means that they become effective in the future if you become incapacitated.
Medical Powers of Attorney grant an agent the power to manage your health-care decisions when you are no longer able to make those decisions yourself.
If you failed to leave a Will, the state’s intestacy scheme will determine how your assets are distributed.
Probate loosely translates to “to prove.” Probate is the judicial process of recognizing a person’s death and distributing their assets or estate.
Depending on the size of the estate and how it is administered, a probate can take between a few months to a few years.
Guardianship acts as a form of legal protection for those incapable of making proper legal decisions for themselves, whether minor or incapacitated. A Guardian is a legal agent of the person responsible for another’s medical care, education (for minors), housing, and well-being.